John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2018 NLSC 60 (CanLII)

Date: 2018-03-16
File number: 199901T3223
Citation: John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2018 NLSC 60 (CanLII), <http://canlii.ca/t/hr376>, retrieved on 2018-04-17
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IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR

GENERAL DIVISION

 

Citation: John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2018 NLSC 60

  Date: March 16, 2018

Docket: 199901T3223

 

Between:

John Doe (G.E.B. #25)

First Plaintiff

And:

the Roman Catholic Episcopal Corporation of st. john’s

                                                         FIRST DEFENDANT

AND:

                  the Chrstian Brothers

                  Institute Inc.

SECOND Defendant

 

- and –

                                                                                          Docket: 199901t3224

 

between:

John Doe (G.E.B. #26)

first Plaintiff

And:

the Roman Catholic Episcopal Corporation of st. john’s

                                                         FIRST DEFENDANT

AND:

                  the Chrstian Brothers

                  Institute Inc.

SECOND Defendant

 

- and –

                                                                                          Docket: 199901t3231

 

between:

John Doe (G.E.B. #33)

first Plaintiff

And:

the Roman Catholic Episcopal Corporation of st. john’s

                                                         FIRST DEFENDANT

AND:

                  the Chrstian Brothers

                  Institute Inc.

SECOND Defendant

 

- and –

                                                                                          Docket: 199901t3241

 

between:

John Doe (G.E.B. #50)

first Plaintiff

And:

the Roman Catholic Episcopal Corporation of st. john’s

                                                         FIRST DEFENDANT

AND:

                  the Chrstian Brothers

                  Institute Inc.

                                                                        SECOND Defendant

 

Restriction on Publication: An order respecting confidentiality has been made in the trial of this action which restricts the ability of anyone to report upon or advise any third party about facts which may identify and of the individuals named.  This includes the Plaintiffs, and several of the witnesses in the proceeding.

 

 

Before:  Justice Alphonsus E. Faour

 

 

 

Place of Hearing:                             St. John’s, Newfoundland and Labrador

 

Date(s) of Hearing:                          April 4-20, 2016

                                                         June 6-30, 2016

                                                         December 14-17, 2016    

 

Summary:

                                     

Four Plaintiffs claimed damages against the Defendant Archdiocese for abuse by Christian Brothers during their childhood while living at Mount Cashel Orphanage in the late 1940’s and 1950’s.   They cite three grounds:

1.     The Archdiocese is vicariously liable for the action of the Christian Brothers because it had sufficient control over the orphanage.  The evidence disclosed no operational control by the Archdiocese over the orphanage, as the Christian Brothers’ organization had full control over the day to day management.  They were also separate corporate entities.  Accordingly, the Archdiocese is not vicariously liable for the acts of the Brothers;

 

2.     The Archdiocese is vicariously liable for the non-feasance of the parish priest assigned to the orphanage in preventing abuses upon receipt of knowledge.  There was insufficient evidence to find, on a balance of probabilities, that disclosures made in the confessional raised a duty of care, or that nothing was done.  Apart from speculation about what may have happened, there was insufficient evidence to find there was breach of a duty of care by the priest, and accordingly, the Archdiocese is not vicariously liable.

 

3.     The Archdiocese is directly liable in negligence upon receipt of direct knowledge of abuse.  The one incident for which evidence was submitted was a memo written by the priest-assistant to the Archbishop in 1954.  The evidence available indicated that there was follow-up by the office, and that was deemed sufficient under both the Canon Law governing the relationship between the Archbishop and the Brothers, and the civil law.  No liability was found.

 

 

Plaintiffs also sought an assessment of damages based on extensive psychological evidence presented.  The Court assessed non-pecuniary damages for all plaintiffs, and economic loss for two of them. 

Accordingly, the four actions against the Archdiocese were dismissed.

Appearances:

 

Geoffrey E. Budden William A.F. Hiscock Paul A. Kennedy

Allison S. Conway                                                Appearing on behalf of the Plaintiffs

                                                in all actions

 

Mark R. Frederick

Susan A. Metzler

Chris T. J. Blom

Emma Nicholl                                                Appearing on behalf of the Defendant

                                                in all actions

 

Authorities Cited:

 

CASES CONSIDERED: B. v. Murray, 2007 S.L.T. 605, [2007] C.S.I.H. 39; Blackwater v. Plint (1998), 1998 CanLII 13299 (BC SC), 161 D.L.R. (4th) 538, 1998 CarswellBC 1745 (S.C.); and 2001 BCSC 997 (CanLII) (affirmed by the Supreme Court of Canada at 2005 SCC 58 (CanLII)); C.(R.) v. McDougall, 2008 SCC 53 (CanLII); John Doe v. Bennett, 2004 SCC 17 (CanLII); Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534, 1999 CarswellBC 1264; Jacobi v. Griffiths, 1999 CanLII 693 (SCC), [1999] 2 S.C.R. 570, 1999 CarswellBC 1262; Jacobi v. Griffiths, [1995] B.C.W.L.D. 3081, 1995 CarswellBC 2764 (S.C.); 671122 Ontario Ltd v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII); B.(K.L.) v. British Columbia, 2003 SCC 51 (CanLII);  Broome v. Prince Edward Island, 2010 SCC 11 (CanLII); Doe v. Brouillette (2009), 906 N.E. 2d 105 (Ill. App. Ct.); H.(H.) Estate v. Newfoundland & Labrador, 2010 NLTD 47 (CanLII); Dodd v. Society of the Love of Jesus (1975), 1975 CanLII 1075 (BC SC), 53 D.L.R. (3d) 532, 1975 CarswellBC 306 (S.C.); John Doe v. Bennett, 2002 NFCA 47; K.(W.) v. Pornbacher, 1997 CanLII 12565 (BC SC), [1998] 3 W.W.R. 149, 1997 CarswellBC 40 (S.C.); Rich v. Bromley Estate, 2011 NLTD(G) 16;

Arishenkoff v. British Columbia, 2002 BCSC 488 (CanLII); R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, 1987 CarswellNB 25; Hanke v. Resurfice Corp., 2007 SCC 7 (CanLII);

Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, 1996 CarswellBC 2295; B.(M.) v. 2014052 Ontario Ltd., 2012 ONCA 135 (CanLII); B.(B.P.) v. B.(M.M.), 2009 BCCA 365 (CanLII); G.(B.M.) v. Nova Scotia (Attorney General), 2007 NSSC 27 (CanLII); G.(B.M.) v. Nova Scotia (Attorney General), 2007 NSCA 120 (CanLII); Young v. Bella, 2006 SCC 3 (CanLII); V.P. v. Canada, 1999 SKQB 180 (CanLII); Curran v. MacDougall, 2006 BCSC 933 (CanLII);

Evans v. Sproule (2008), 176 A.C.W.S. (3d) 895, 2008 CarswellOnt 8753 (Sup. Ct.); M.(D.) v. W.(W.), 2013 ONSC 4176 (CanLII); Rich v. Bromley Estate, 2013 NLCA 24 (CanLII); C.(D.) v. C.(K.) (1993), 1993 CanLII 8300 (NL SC), 108 Nfld. & P.E.I.R. 314, 1993 CarswellNfld 302 (S.C.T.D.); B.(E.) v. Order of the Oblates of Mary Immaculate (British Columbia), 2001 BCSC 1783 (CanLII); M.(K.M.) v. Roman Catholic Episcopal Corp. of the Diocese of London in Ontario, 2011 ONSC 2143 (CanLII); Shaw v. Staples, 2013 ONSC 3290 (CanLII); Langstaff v. Marson, 2013 ONSC 1448 (CanLII); John Doe v. O'Dell (2003), 2003 CanLII 64220 (ON SC), 230 D.L.R. (4th) 383, 2003 CarswellOnt 3456 (Sup. Ct.); John Doe v. Bennett (1999), 1999 CanLII 19740 (NL SC), 186 Nfld. & P.E.I.R. 131, 1999 CarswellNfld 322 (S.C.T.D.)

 

STATUTES CONSIDERED: An Act to Incorporate the Roman Catholic Bishop of Saint John’s, 60 Vic. Cap. XVIII; An Act to Incorporate the Roman Catholic Bishop of Saint John’s, 3 Geo. V. Cap.10; An Act to Incorporate the Christian Brothers of Ireland in Canada, Statutes of Canada, 1962-63, c. 22; Limitations Act, S.N.L. 1995, c. L-16.1; The Indian Act, R.S.C. 1985, c. I-5; Evidence Act, R.S.N.L. 1990, c. E-16; Limitation Act, S.B.C. 2012, c. 13; Judgment Interest Act, R.S.N.L. 1990, c. J-2

 

 

REASONS FOR JUDGMENT

 

Faour, J.:

INTRODUCTION

[1]              The four Plaintiffs were victims of abuse at the hands of several Christian Brothers during their childhood.  At the time, they were residents of the Mount Cashel Orphanage for varying periods of time from the late 1940’s until the late 1950’s.  They have claimed damages for this abuse against The Roman Catholic Episcopal Corporation of St. John’s (the “Archdiocese”) and The Christian Brothers Institute Inc. (the “Christian Brothers”).

 

[2]              The Archdiocese is the only remaining Defendant.  The Christian Brothers did not participate in this trial, as bankruptcy proceedings in the United States have resulted in liquidation of its assets to attempt to satisfy the claims of those abused. The Christian Brothers appear to have acknowledged liability, although no trial has taken place to date.

[3]              The Archdiocese does not dispute that abuse took place.  It has expressed regret that these men suffered through the experience of abuse at the orphanage.  It does not accept that it is liable for that abuse.

[4]              These actions are perhaps the final chapter in a long and sorry history of sexual and physical abuse of boys at the Mount Cashel Orphanage in St. John’s.  The actions were commenced in 1999, but the circumstances date back some 60 to 70 years.  The Plaintiffs submit that the Archdiocese is liable for the sexual abuse they suffered and seek an assessment of the damages that would be payable if liability is found.  This decision deals with the issues of liability and damages. 

History and foundation of the school

[5]              The history of the Mount Cashel Orphanage must start with an examination of the circumstances of Newfoundland society and the role of the Roman Catholic Church in the 19th century.  Why is this important?  This is for two reasons.  First, it provides some context for the evidence and the events which are the subject of the proceeding.  Second, the Plaintiffs have asserted that the orphanage was a joint venture between the Archdiocese and the Christian Brothers from the beginning.  It has pointed to collaboration between the two entities for the establishment of the institution as the first step in an almost one hundred year shared operation. 

[6]              The court had the benefit of the expert testimony of Dr. John Fitzgerald, an historian at Memorial University.  His specialty has been the history of the integration of the Irish settlers, colonial officials, and the Roman Catholic Church in Newfoundland.  He outlined the changing face of the society, from one in which

communities and economic activity, mainly fishing, were itinerant and migratory, to one in which communities became more settled. 

[7]              By the latter part of the 18th century, Irish immigration had created a sizeable Roman Catholic community in the eastern part of the Island of Newfoundland, centred on St. John’s.  It was not until this era that a chapel was built in the City, and shortly after, in 1784, the territory recognized by the Pope as a distinct church region, to be overseen by the Church in Quebec.  It wasn’t until 1829 that a full bishop of Newfoundland was appointed, in the person of Michael Fleming.

[8]              At the same time as the Catholic Church was gaining its place in Newfoundland society, other Christian denominations were becoming established.  All of the churches took on a practical role, since there was no involvement of the public sector in provision of certain social services.  In areas of health and education, the churches, including the Roman Catholic Church, moved to fill the gap.  In the field of education, the Roman Catholic Bishop invited certain orders of Sisters and Brothers to provide and operate schools.  While the Church was staffed by well-educated clergy, their education focused on philosophy and theology, and not pedagogy.  The Presentation and Mercy Sisters had an expertise and reputation in education, and began educating children in 1833.  The Christian Brothers arrived much later, and began teaching in 1875.

[9]              Through this period there developed a recognition that many children who were abandoned had no prospect for care.  A private organization, the Benevolent Irish Society (“BIS”), was interested in inviting the Irish Christian Brothers to teach in their schools.  In 1875, they sought the assistance of the then bishop, Thomas Power, in approaching the Brothers.  That initiative resulted in the Brothers coming to Newfoundland and began their teaching at St. Patrick’s Hall School.  That school was funded by the Society.

[10]         Under Canon Law, the approval of the bishop was required before a religious organization could come into the diocese.  That approval was evidenced by a handwritten agreement introduced into evidence, and described as to its significance and context, by Dr. Fitzgerald.  The document disclosed an agreement between

Bishop Power and D.M. McDonnell, Assistant to the Superior of the Christian Brothers, signed on September 9, 1875.  Because there will be reference to it in these reasons, I will reproduce it in its entirety.  I will refer to it as the “1875 Agreement”:

 

8th September 1875

 

Draft of agreement between the Right Rev Dr. Power of St. John’s Newfoundland, and the Superior General of the Christian Brothers Institute in Ireland.

 

1.      That an annual collection for the support of the Institute be taken up on the last Sunday in January in the Cathedral and other churches in St. John’s.

 

2.      That the Ecclesiastical Authorities on the Second last Sunday in January announce the collection and give it all reasonable sanction.

 

3.      The Christian Brothers will be free to receive such other subscriptions and donations as the generosity of the public may suggest for the extension of the Institute in St. John’s and Newfoundland.

 

4.      The Brothers will not be obliged to receive or accept any government grant, or to place their schools under government inspection.

 

5.      That the lease of land – little over four acres – selected by the Rev. Br. McDonnell, be transferred to the Institute, as should the Christian Brothers prefer it, a sufficient portion of the field at the rere of the Palace held in Fee will be given them.

 

6.      That on the land so selected, a suitable dwelling house for the Institute be erected by the Bishop.  The Bishop trusting to the well known generosity of the people for the necessary funds.

 

7.      That as speedily as possible, a temporary dwelling house be secured by the Bishop for the Brothers, all necessary accommodations provided for them including an oratory; the Bishop being responsible for all rents and taxes in connection with such dwelling.

8.      The Bishop will supply funds to render existing schools suitable for the reception of children according to the system of the Brothers in Ireland and will also undertake to supply all other necessary requisites

 

9.      The Bishop will pay the expenses of each Brother from Ireland and supply them to the number of five at the rate of fifty pounds per annum for the support of each Br. Until such time as the annual collection . . . [obscured]

 

9.      [sic] the Brothers will be allowed the free [obscured] of the Rules and Religious observances in the same manner as in Ireland.

 

10.  That in all things appertaining to such rules and observances they will be subject to their own Superior and to no other person.

 

11.  That the schools under the management of the Christian Brothers be conducted by them with due efficiency both with regard to secular education and the Religious Instruction of the children.

 

12.  That as soon as circumstances permit a community of not less than five Brothers represent the Institute in St. John’s.

 

[sgd.] Rt. Rev. T.J. Power, Bishop of St. John’s

[sgd.] D.M. McDonnell, Assistant to Superior of Christian Brothers

9th Sept. 1875

[11]         Note in paragraphs 9 (the second one) and 10 the acknowledgement of the independence of the Brothers from interference by the bishop.  With the 1875 Agreement as a starting point, the Christian Brothers organization began teaching at St. Patrick’s Hall, and by the 1890’s was, in addition, operating St. Bonaventure’s College and Holy Cross School.  Between 700 and 800 boys attended these schools. 

[12]         Notwithstanding that several of the denominations provided education for boys and girls, there was no institution operated under the auspices of the Catholic bishop to provide for poor, abandoned and orphaned boys.  As early as 1892 there had been discussions between the Brothers and the bishop, but the idea was not developed at that time.  In 1897, the new Bishop, Michael F. Howley, was approached by the government, which was interested in providing for the needs of such boys who would otherwise have been destitute or would end up in a reformatory.  The government also promised a financial contribution for the maintenance of the boys.

[13]         The BIS took a leading role in advocating for the establishment of such a facility and approached the bishop of the day for his support.  According to Dr. Fitzgerald, the bishop recognized the need, but also that the diocese did not have the necessary expertise or resources to establish and run an orphanage.

[14]         The BIS convened a public meeting in early December 1897.  Bishops Howley of St. John’s, and McDonald of Harbour Grace were in attendance and took an influential role.  The meeting resulted in a delegation meeting with the government of the day.  However, an election shortly thereafter resulted in a change of government.  The new administration was not supportive of the initiative. 

[15]         With the support of the BIS, the diocese, and the work of the Christian Brothers, private funds were raised, and land was obtained at the site of a farm located to the north-east of the City of St. John’s.  This land was known as Mount Cashel, and the new institution was built and opened in 1898.

[16]         The orphanage became an icon in the City of St. John’s, and the Christian Brothers enjoyed a stellar reputation for dedication to youth education, in particular, for underprivileged boys, for many years, until the scandals arising from the events in this action became known.  Because of these revelations, Mount Cashel closed in 1989, the Brothers left, and the land, in accordance with the original agreement of sale, reverted to the Archdiocese.  The lands were sold a few years later for commercial development.

The parties

The Plaintiffs

[17]         The Plaintiffs are four former residents of the Mount Cashel Orphanage.  They have all alleged abuse at the hands of the Christian Brothers while there.  They all entered the orphanage while children, and stayed for varying periods.  Because I have ordered a ban on publishing information that would tend to identify them, I shall refer to them in these reasons by their initials and the number assigned to the actions.  Accordingly, the four Plaintiffs are:

1.     G.E.B. # 25 (J.E.)

 

 

2.     G.E.B. # 26 (E.F.)

 

3.     G.E.B. # 33 (R.H.)

 

4.     G.E.B. # 50 (R.S.)

[18]         The claims of the Plaintiffs arise from the consequences of the abuse they suffered at the hands of several of the Christian Brothers and one employee of the orphanage in the 1950’s.  They are seeking non-pecuniary damages for the abuse they suffered, and the consequential losses in income over their lives.  They also seek aggravated and punitive damages for the actions of the Brothers.

[19]         There are also several other actions before this court involving men who were abused during the same period.  Those actions have been held in abeyance pending the outcome of this proceeding.  While this is not a formal representative, or class, action, these four cases were put forth as being somewhat representative of the issues and damages which would arise in all of them.  The outcome of this case may provide a precedent for resolution of the other outstanding actions.

The First Defendant – the Archdiocese

[20]         The First Defendant is the Roman Catholic Episcopal Corporation.  That organization is the corporate personality of the Catholic Church in the eastern portion of the island of Newfoundland, with its head office in St. John’s. 

[21]         Much of the historical evidence of the existence of the Archdiocese comes from the testimony and report of Dr. Fitzgerald.  It is generally uncontested, and I am satisfied that on this topic, I can accept it as an accurate description of its establishment and development as a corporate entity.

[22]         The Archdiocese has its origins in the early years of the Roman Catholic Community in Newfoundland.  Dr. Fitzgerald notes that by the middle of the 18th century, St. John’s had about 900 permanent residents, 85% of whom were Roman Catholic, primarily from Ireland.  Because of a petition from some residents, James O’Donel was appointed as Prefect Apostolic, or Superior, in 1784 to preside over the newly created church territory, or “Vicarate” of Newfoundland.  Prior to that time, Roman Catholics had no formal institutional support.  The Church of England was the “Established Church”, as Dr. Fitzgerald notes, but there was no prohibition on settlement by Roman Catholics or their engaging in trade. 

[23]         The Diocese of Newfoundland, as it was established in the time of O’Donel, consisted of the whole island of Newfoundland and the coast of Labrador. During the 19th century this territory was subdivided, first in 1856 with the establishment of a new Diocese of Harbour Grace, and in 1870 with the establishment of the Diocese of St. George’s on the western part of the island. 

[24]         While the church authorities had established a formal presence through the creation of a diocese in each region, the civil authorities did not formally recognize the corporate personality of the organization until much later.  In 1897, the House of Assembly passed An Act to Incorporate the Roman Catholic Bishop of Saint John’s,  60 Vic. Cap XVIII.  This statute declared the bishop and his successors as a corporation, with the power to hold lands and property (section 1) and further, to borrow money for its purposes (section 7).  Similar statutes were passed at the same time respecting the Diocese of Harbour Grace and the Vicar Apostolic of St. George’s. (c. XIX and XX respectively).  These statutes were amended from time to time to adjust to changing circumstances, in particular, in 1913 to recognize that the Diocese of St. John’s had been elevated to an Archdiocese, with an Archbishop (An Act to amend 60 Vic., Cap XVIII, entitled “An Act to Incorporate the Roman Catholic Bishop of Saint John’s, 3 Geo. V, Cap. 10).

[25]         As a result, the Archdiocese, from at least the time of these statutes, had a separate corporate personality from the pastoral activities it had undertaken.  It was in this capacity that the Archbishop invited the Christian Brothers to establish the orphanage, filling a perceived need for such a service in the community. 

 

[26]         Throughout its history, the Archdiocese was also instrumental in bringing into the community other religions orders, in particular the Sisters of Mercy and Presentation Sisters.  Both these religious orders of women established and operated schools within the diocese, and in other areas of Newfoundland.  The Sisters of Mercy also established and operated a hospital facility from about 1913 in St. John’s until the government took over its operation in the 1990’s.  All of these facilities were supported by the Archdiocese.

The Second Defendant, the Christian Brothers

[27]         The Christian Brothers were established as a lay religious order of teachers in Ireland at the beginning of the 19th century.  As a lay order, they were men who were not ordained as priests, nor did they have the status of monks.  They were primarily educators, and their organization was established for the purpose of educating poor boys, initially in Waterford. 

[28]         They expanded their activities throughout Ireland, and came to the attention of Bishop Fleming, a successor to James O’Donel, before he was appointed as bishop in St. John’s.  From his early year as a priest he had observed the educational work of the Brothers in Ireland.  When he became bishop he attempted to persuade the Brothers to come to Newfoundland.  His entreaties were unsuccessful at that time, because the Brothers had insufficient numbers at that time to satisfy the needs in Ireland.

[29]         The Brothers finally arrived in Newfoundland in 1875 as evidenced by the Agreement of that year with the then Bishop, T.J. Power.  According to Dr. Fitzgerald, they quickly developed a positive reputation for the education of boys in the city. 

[30]         The Christian Brothers were one of several religious orders established in the diocese during the 19th Century.  These orders were organizations of religious men or women dedicated to a specific function in the broader community under the aegis of the diocese.  According to Dr. Fitzgerald, if they were ordained, they would be

orders of priests, generally, but not always, dedicated to parish work.  If they were not ordained, the religious congregations, Sisters or Brothers, often were dedicated to a social function, in education or health care. 

[31]         As Dr. Fitzgerald pointed out, congregations of religious women had already been established in the diocese by the time the Christian Brothers arrived.  The Presentation and Mercy Sisters ran schools, mostly for girls.  Later, the Mercy Sisters opened St. Clare’s Hospital and operated that facility in St. John’s until the 1990’s.  When the Brothers arrived, their role was similar, and filled a serious gap in educating boys. 

[32]         The Brothers, like other groups of religious congregations, were a community of men.  They were not ordained priests, but were men who made a commitment to live in a community together under a set of rules set out and enforced by the Superiors in the organization.  Those rules specifically prohibited an ordained priest from becoming a member of the congregation of Christian Brothers.  While the bishop was the ultimate religious authority in the diocese, since he was ordained, he could not become a member of the Christian Brothers congregation.

[33]         As a group of lay people, their work was dedicated to the education of boys.  In Newfoundland of the 19th and 20th centuries, they ran numerous boys’ schools in St. John’s and by the 1940’s and 50’s opened schools in other communities.  At the same time, congregations of women of the Presentation and Mercy orders operated schools for girls, and sometimes for boys and girls, where there were no schools operated by the Brothers.

[34]         According to Dr. Fitzgerald, and underscored by the two experts in Canon Law who testified, there was a key difference in governance between the Presentation and Mercy Sisters in the diocese, and the Christian Brothers.  This difference has some significance in a determination of the degree of authority exercised by the Archbishop over the religious orders.  Dr. Fitzgerald described the difference between congregations of Diocesan Rites and congregations of Pontifical Rites.  The former recognized the Archbishop as their Superior, and took direction from him.  Both congregations of Sisters in the Province, the Presentation and Mercy congregations, were of Diocesan Rite, and were answerable to the bishop in any diocese in which they operated.

[35]         Congregations of Pontifical Rite did not answer to the local bishop.  As an organization, they answered to the Vatican.  The Christian Brothers were an order of Pontifical Rite.  Within their organizational structure, the chain of command put their Superior first in New Rochelle, New York, then to the Province (in Christian Brothers’ structure) of Canada, and then to Rome.  

[36]         One interesting fact about the Brother involved their legal personality.  Prior to 1962 in Canada the Brothers had no incorporation statute.  They made decisions and generally functioned under their internal constitutions.  Where there was a requirement to hold property, it was held in the name of groups of three or five Brothers.  In 1962, the Parliament of Canada passed the first incorporation statute, An Act to Incorporate the Christian Brothers of Ireland in Canada, Statutes of Canada, 1962-63, c. 22.  That statute set out the objects of the corporation, and included operating educational facilities, orphanages, among other functions.  It also had powers to inter into agreements with dioceses. 

[37]         The statute recognized the de facto circumstances of the operations of the Brothers.  In Newfoundland, the 1875 Agreement was the first formal exchange involving the local bishop.  The other objects respecting operating educational institutions and other facilities also reflected the activities of the Brothers since their arrival in 1875.

[38]         It must be said that the Christian Brothers, while named as the Second Defendant in this action, took no part in this trial.  The Brothers had been subject to bankruptcy proceedings in the United States.  Its assets in Canada have been liquidated to attempt to satisfy the claims of boys who were sexually abused, at Mount Cashel, and some other places in Canada and the United States. 

[39]         The Archdiocese, as First Defendant, has not disputed the fact of physical and sexual abuse of boys at the orphanage.  It acknowledges that several Christian

Brothers were responsible for abuse against the Plaintiffs.  However, it does not accept that it is liable to the Plaintiffs, and if liable, disputes the causal connection between the assaults and the damages claimed.

The various members of the christian Brothers who committed the assaults

[40]         It is useful to review the testimony of the four Plaintiffs to determine the specific actors who were responsible for the acts of abuse.  The role of these individuals was not contested by the Archdiocese, only the issue of whether the specific acts constituted sexual abuse, and the causal connection between those acts and the damages suffered.  The distinction between sexual abuse and physical abuse is important because of the operation of the limitations’ legislation, which I will consider below.  I will not review the extent of the acts at this time but will do so later when considering the damages suffered.

[41]         The first Plaintiff to testify was E.F.  He identified several Brothers who had physically and sexually abused him, including Brothers J.E. Murphy, Spollen, Collins, Ford, and an employee of the Brothers, Frank Clancy, an electrician.  He also identified several others who exhibited aggressive behaviour which did not become sexual.  The sexual abuse extended over several years and was carried out on a regular, almost daily, basis.

[42]         The next Plaintiff was R.S.  He described many incidents of physical abuse and violence by several Brothers.  He also described one incident that had sexual overtones involving Brother Lasik strapping him while nude in the shower.  I will address this incident below. 

[43]         R.H. testified next.  He identified regular and frequent incidents of sexual abuse by Brother Lasik over about two years.  He also described incidents of physical violence involving Lasik and other Brothers.  His description of the sexual abuse was probably the most compelling of any of the Plaintiffs.  It was continuous, intrusive and appears to have had a profound impact on him.

[44]         The final Plaintiff to testify was J.E.  He said Brother J.E. Murphy sexually abused him on one occasion and a civilian employee of the orphanage, who worked regularly at the orphanage as an electrician, Frank Clancy, assaulted him sexually on at least two occasions.  He also spoke of the cruelty associated with physical violence on the part of several other Brothers.

[45]         The Brothers who were accused of sexual abuse were the subject of an investigation by the Royal Newfoundland Constabulary many years later, in the 1990’s.  Archbishop Martin Currie, in his testimony, confirmed that four Brothers were convicted in the criminal courts of abuse.  In addition, Frank Clancy was convicted of sexual assault.  Most of these served some time in prison.

[46]         To summarize, the Plaintiffs identified Brothers J.E. Murphy, Spollen, Collins Ford, and Lasik, and an employee, Frank Clancy, as committing acts of sexual abuse.  Several of them were tried, convicted and served time in prison.  I will deal with the nature of these assaults below in the context of assessing damages.

[47]         I have made a distinction between those who the Plaintiffs accused of committing acts of sexual abuse, and those who committed acts of cruelty, amounting to physical assaults and abuse.  The Limitations Act, S.N.L. 1995, c. L-16.1 makes this same distinction and provides that acts of sexual abuse are not limited by time, but acts of physical abuse are.  That distinction will be explored below.

Nature of the Evidence

Historical assault

[48]         The trial also was obliged to deal with evidentiary problems that arise when a proceeding takes place many years after the events which triggered the action.   Memories of witnesses fade with time.  They may not remember the context, or if very young at the time, may not have understood the context of what they remember.   For these Plaintiffs, all the events which were the subject of their testimony took place when they were young, between 10 and 15 years of age.

[49]         I have no doubt about the Plaintiffs’ description of the events that happened to them personally.  But there are other aspects of their testimony that bear serious scrutiny.  For example, there were several incidents where disclosure was made to the Superior of the Brothers, or to priests whose knowledge of abuse would be significant to the liability of the Archdiocese.  However, we have no direct evidence of what these individuals did with that knowledge, if anything.  That is problematic in assessing whether there was a duty of care, and whether it was breached.

[50]         There was significant documentary evidence, with many of the authors long deceased or unavailable to testify.  These documents reflect incidents and exchanges, generally, between the Archdiocese and the Brothers.  Dr. Fitzgerald testified that he did a thorough search of the archives of the Archdiocese.  His search disclosed long periods without documents.  Either there were many gaps in the record, or documents that would have helped the Plaintiffs just did not exist.  The documents that were submitted must also be read in the context of the time, and be considered in that light.

[51]         The Defendant has submitted that the court consider the difficulty of dealing with evidence of an historical nature.  The passage of time itself had imposed serious prejudice in responding to the claims of the Plaintiffs.  It cited, by way of example, the Scottish case of B. v. Murray, 2007 S.L.T. 605, [2007] C.S.I.H. 39 involving an action by several former residents of a children’s home who alleged mistreatment and abuse.  In that case, the court commented on the difficulties which arise when considering evidence from historical sources.  In a discussion beginning at paragraph 56 several factors were highlighted as relevant when considering such evidence. 

[52]         The first was the prejudice which could be caused by the lapse of time generally.  The court was of the view that the inability to test the evidence effectively could lead to a serious decline in the quality of justice.  It provided some examples, related to the specifics of the case.  First, the general attitude towards corporal punishment of children has changed dramatically since the time of the alleged

incidents and the testimony should be viewed from that perspective.  Second, the Plaintiffs suffered from the general effects of institutional care, quite apart from the specific incidents of abuse.  Finally, the Plaintiffs suffered from adverse personal circumstances quite apart from the abuses inflicted on them. 

[53]         Another factor was the prejudice caused by the loss of evidence and the unavailability of witnesses.  The difficulty of recall and memory after so many years was an obstacle to important details relevant to establishing or defending the cause of action.

[54]         In response, the Plaintiffs in this case argued that the evidence must speak for itself and rejected the notion that the court should take a different view of the evidence simply because it was old.  They suggested that the Scottish case was not relevant, because of the inapplicability of Scottish law to this action. 

[55]         In respect of the policy arguments, that attitudes towards physical punishment have changed, the Plaintiffs acknowledged the differences.  However, it was pointed out that the current Archbishop, in his evidence, recognized that even in former times, the attitude towards sexual abuse would be similar in the present day. 

[56]         In this country, the case of Blackwater v. Plint, 2001 BCSC 997 (CanLII), later affirmed by the Supreme Court of Canada at 2005 SCC 58 (CanLII), dealt with similar issues.   Chief Justice Brenner described some of the challenges of deciding historical assault cases beginning at paragraph 4:

4.         This is an historic sexual assault case. It features the particular challenges that such cases present to a trier of fact. The events occurred many years ago, some as far back as the 1940's. Many of the alleged perpetrators are dead. Yet others who might have been available as witnesses have also passed away.

 

5.         The assaults described by the plaintiffs were extremely traumatic. They have spent many years and much energy in trying to put these events behind them. Then, for this litigation they have been required to recall these unhappy memories. They had to give statements and sworn evidence to strangers, many of whom were adversarial as representatives of the defendants. They have been questioned at length and in detail about these unhappy matters that they have spent so much time trying to forget or overcome.

[57]         All of the considerations set out in the Murray case from Scotland, and the 2001 Blackwater case from British Columbia, are present in this case.  In addition, there was significant documentary evidence presented, mostly by consent, which underlie the historical record. 

[58]         Much of the documentary evidence was from the Defendant’s own archives.  The Plaintiffs took the view that the Defendant cannot claim prejudice by the loss of documents because of the passage of time since much of the documentary evidence was in their custody.  However, whether in the custody of the Defendant or not, the use of old documents may be prejudicial simply because they are old.  Even if the Defendant had the documents in their possession, there is no requirement in law to maintain files for 50-60 years.  Any prejudice comes from the passage of time.  While the documents may speak for themselves, in the present day there is no way to challenge them or refute them. 

[59]         Both sides have asked the court to scrutinize the historical record from their perspective.  The Defendants have argued that caution should be exercised when considering incomplete evidence, testimony where memories have faded, and documents for which the authors are not available to testify as to their significance or context.  On the other hand, the Plaintiffs have asked the court to draw conclusions from that same evidence, and in doing so undertake an analysis that may border on speculation.  Neither approach is helpful.

[60]         In examining this issue, I find that there is nothing new in the concepts raised by the Defendant respecting historical evidence.  The test was and still is proof on the balance of probabilities, and the Plaintiffs must meet that standard.  The use of ancient documents may be considered by a court as part of the factual matrix.  Testimony based on fading or incomplete memories may carry some weight.  However, they must be subject to the same requirements of corroboration and credibility as any other evidence.  The fact that the authors of most of the documents

submitted were not available to testify is problematic in drawing conclusions from their contents. 

[61]         In C.(R.) v. McDougall, 2008 SCC 53 (CanLII) the Supreme Court of Canada addressed the standard of proof in civil cases.  Justice Rothstein stated quite clearly that no matter the nature of the evidence, the civil standard must be applied.  He said, at paragraph 40:

40.      … I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof.

[62]         He went on at paragraph 46 to consider the application of this standard in difficult cases:

46.      … evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.

[63]         Documentary evidence without context may be problematic.  Plain meanings alone may not be sufficient to satisfy a court that the requisite standard has been met. The only contextual evidence available in this case was from the historian Dr. Fitzgerald.  He, and several other witnesses, were required to opine on the significance of some writings in the absence of direct evidence from the writers.  While such testimony may be useful and provide some context for the contents of some documents, for the court it is less satisfactory than hearing from witnesses who authored the documents, or observed the events in question.

[64]         There is a prejudice that comes from the passage of time.  Where witnesses testify, and the Plaintiffs’ testimony is in this category, their memory of events some sixty or seventy years ago may not be as clear as for events that are more recent.  When documents are submitted, their authors cannot be cross-examined. 

[65]         More importantly, while documents may reflect some fact or event, we have no idea whether they represent the whole picture of the events described.  Dr. Fitzgerald testified on several occasions that for some issues he drew conclusions as much from the absence of documents, as from their presence.  For example, while the Plaintiffs argued that there was a close relationship between the diocese and Mount Cashel in the first half of the 20th century, there was almost no documentary evidence presented for most of that period.  On the one hand, the court is being asked to conclude from the absence of documents that there was no relationship.  On the other hand, the court must consider that the absence of documents may arise because they were lost, simply not found, or perhaps did not exist.  Where the evidential record is not complete, the court either is put in the position of speculating or must consider the credibility of the propositions put forth based on the scanty evidence presented.  The overarching principle, however, is that the Plaintiffs have the burden of proving their case on the balance of probabilities.  That requires more than speculative assertions but does not require them to meet a higher standard of proof.

[66]         While the opinions in Murray, the Scottish case, are not to be rejected simply because of the possible inapplicability of principles from different legal systems, the same considerations have been accepted in this country.  The court must acknowledge the limitations of historical evidence.  In the Murray case, however, it is interesting that the opinions respecting historical evidence were articulated in the context of a motion to reject the action because of the passage of time.  In this case, the presentation of evidence, both documentary and viva voce, of historical events will simply have to meet the normal civil burden of proof, no more, no less.

Liability of the Archdiocese

Position of the Parties

[67]         The Plaintiffs assert liability against the Archdiocese on three grounds.  First, they argue liability attaches because the Archdiocese had sufficient control over the orphanage to make it vicariously liable for the actions of the Brothers.  Second, they submit that the Archdiocese is vicariously liable for the failure of the parish priest, Msgr. F.J.D. Ryan, at Mount Cashel to intervene to prevent the abuses upon receipt of knowledge.  Third, that the Archdiocese is directly liable in negligence arising from its inaction in the face the abuses of which it had knowledge.

[68]         The Defendant’s position is that the evidential record discloses insufficient connection between the Archdiocese and the orphanage for any of the grounds for liability.  It argues that it was the Brothers, not the Archdiocese, which operated the orphanage, and were responsible for all of the personnel, policies, educational curriculum, contact between the perpetrators of the abuse and the residents, and the overall management of the facility.  It also denies that negligence attached to the work of Fr. Ryan as parish priest.  And finally, it argues that it discharged its responsibility appropriately when it became aware of abuse.

Vicarious liability for the conduct of the Brothers

[69]         The concept of vicarious liability is unique in tort law.  It imposes liability where there has been no fault.  Liability is found where there is, generally, an employment relationship, or other relationship involving supervision and control over the tortfeasor.  In one of the trial decisions in Blackwater v. Plint (1998), 1998 CanLII 13299 (BC SC), 161 D.L.R. (4th) 538, 1998 CarswellBC 1745 (S.C.), Justice Brenner, as he then was, explained the concept beginning at paragraph 108:

108.     The doctrine of vicarious liability is described by Professor Atiyah in The Law of Torts (London; Butterworths, 1967) at p. 1:

 

Vicarious liability in the law of tort may be defined as liability imposed by the law upon a person as a result of 1) a tortious act or omission by another, 2) some relationship between the actual tortfeasor and the defendant whom it is sought to make liable, and 3) some connection between the tortious act or omission and that relationship. In the modern law there are three and only three relationships which satisfy the second requirement of vicarious

 

liability namely that of master and servant, that of principal and agent, and that of employer and independent contractor.

 

109.     Vicarious liability is the imposition of liability without fault. It is entirely dependent upon the relationship between the wrongdoer and the person or entity to whom a party seeks to attribute vicarious liability.

[70]         The concept of liability in the absence of fault was described by the Supreme Court of Canada in John Doe v. Bennett, 2004 SCC 17 (CanLII), Chief Justice McLachlin described the concept at paragraph 17:

17.      ….  The doctrine of vicarious liability imputes liability to the employer or principal of a tortfeasor, not on the basis of the fault of the employer or principal, but on the ground that as the person responsible for the activity or enterprise in question, the employer or principal should be held responsible for loss to third parties that result from the activity or enterprise.

[71]         This comment follows on the companion cases of Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 5341999 CarswellBC 1264 and Jacobi v. Griffiths, 1999 CanLII 693 (SCC), [1999] 2 S.C.R. 570, 1999 CarswellBC 1262 where the Supreme Court of Canada revised the rationale for imposing liability without fault.  These cases have significantly altered the field of vicarious liability in Canada.  The court moved from a fairly technical definition focused on the actions of the employee vis à vis the employer, to a policy rationale relating to operation and control over the enterprise, and whether the tortious act is connected with the operation of the enterprise of the defendant.

[72]         The starting point for the court in Bazley was described at paragraph 10 by Justice McLachlin:

10.      … the answer to this question is governed by the "Salmond" test, which posits that employers are vicariously liable for (1) employee acts authorized by the employer; or (2) unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.

 

[73]         The Court decided on a new approach that focused less on the authorization of the employee by the employer, and a rationale that included a combination of compensation policy and operational control by the employer.  The problem with the old approach was described by Justice McLachlin at paragraph 11:

11.      The problem is that it is often difficult to distinguish between an unauthorized "mode" of performing an authorized act that attracts liability, and an entirely independent "act" that does not. Unfortunately, the test provides no criterion on which to make this distinction. In many cases, like the present one, it is possible to characterize the tortious act either as a mode of doing an authorized act (as the respondent would have us do), or as an independent act altogether (as the appellants would suggest). In such cases, how is the judge to decide between the two alternatives?

[74]         The Court articulated a new approach, one that is based on the twin objectives of compensation for the victim and deterrence of tortious behaviour.  On the first, it was apparent that the risk associated with conduct arising from an enterprise that an employer places in the community should give rise to a reasonable prospect of compensation, as the employer is most able to spread the costs throughout the enterprise, perhaps through insurance or other mechanisms.  The second is the logical outcome of the observation that it is the employer, through the policies and practices which it puts in place to govern its activities, is in the best position to minimize the risk.  The two objectives are related, as Justice Wilkinson observed in the trial decision of Jacobi v. Griffiths, [1995] B.C.W.L.D. 3081, 1995 CarswellBC 2764 (S.C.) at paragraph 69:

69.      If the scourge of sexual predation is to be stamped out, or at least controlled, there must be powerful motivation acting upon those who control institutions engaged in the care, protection and nurturing of children. . . .

[75]         This represents the underlying policy basis for the imposition of liability on an employer for the acts of an employee.  The Supreme Court in Bazley elaborated, at paragraph 34:

34.      The policy grounds supporting the imposition of vicarious liability — fair compensation and deterrence -- are related. The policy consideration of deterrence is linked to the policy consideration of fair compensation based on the employer's

introduction or enhancement of a risk. The introduction of the enterprise into the community with its attendant risk, in turn, implies the possibility of managing the risk to minimize the costs of the harm that may flow from it.

[76]         After a discussion of the role of precedent and the desired policy goal of appropriate risk management, the Court set out the principles which should govern the imposition of liability at paragraph 41:

41.      Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee's unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles:

 

(1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of "scope of employment" and "mode of conduct."

 

(2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.

 

(3) In determining the sufficiency of the connection between the employer's creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:

 

(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.

[77]         These principles will have to be applied to the relationship between the Archdiocese and the Brothers who committed the tortious acts. While in Bazley the relationship was defined as employer/employee, the Plaintiffs seek to use evidence of control of the Archdiocese over the orphanage to broaden the nature of the relationship which would give rise to liability.  It is accepted that there was no employer/employee relationship between the Archdiocese and the Brothers.

[78]         In the meantime, several cases since Bazley and Jacobi have provided some aide to interpretation of the principles in light of the facts of this case.

[79]         In 671122 Ontario Ltd v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII) the court dealt with the liability of a company for the actions of an independent contractor.  It found that the hazards of business should be borne by the business.  It is not reasonable to impose liability on a company for the acts of employees of an independent contractor because the same control over the operations does not exist. 

[80]         In B.(K.L.) v. British Columbia, 2003 SCC 51 (CanLII) the court declined to impose vicarious liability on the government for acts committed by foster parents even though the government licensed them, paid them, supervised them, directly placed the children there, and was generally responsible for the children placed there through the child protection system.  The Court found that the independence of the operation of each foster home meant they were too far removed from the control of the government to impose liability.  Whether the relationship was sufficiently close was examined, and the Court set out a two part test, at paragraph 19:

 

19.      To make out a successful claim for vicarious liability, plaintiffs must demonstrate at least two things. First, they must show that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim for vicarious liability appropriate . . . . Second, plaintiffs must demonstrate that the tort is sufficiently connected to the tortfeasor's assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise . . . . These two issues are of course related. A tort will only be sufficiently connected to an enterprise to constitute a materialization of the risks introduced by it if the tortfeasor is sufficiently closely related to the employer.

[81]         In concluding there was no liability on the part of the government, notwithstanding the close regulatory role governing the relationship, Chief Justice McLachlan said at paragraph 23:

23.      These factors suggest that the government is not vicariously liable for wrongs committed by foster parents against the children entrusted to them. Foster families serve a public goal - the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society. However, they discharge this public goal in a highly independent manner, free from close government control. Foster parents provide care in their own homes. They use their own "equipment", to use the language of Sagaz. While they do not necessarily "hire" their own helpers, they are responsible for determining who will interact with the children and when. They have complete control over the organization and management of their household; they alone are responsible for running their home. The government does not supervise or interfere, except to ensure that the child and the foster parents meet regularly with their social workers, and to remove the child if his or her needs are not met.

[82]         The Court went on to note that the rationale for this conclusion was drawn from the policy grounded in the minimization of risk.  At paragraph 26:

26.      This conclusion finds confirmation in the fact that imposing vicarious liability in the face of a relationship of such independence would be of little use. Given the independence of foster parents, government liability is unlikely to result in heightened deterrence . . . . But given the nature of foster care, governments cannot regulate foster homes on a day-to-day basis. Imposition of vicarious liability can do little to deter what direct liability does not already deter. Not only would imposing vicarious liability do little good; it could do harm. It might deter governments from placing children in foster homes in favour of less efficacious institutional settings.

[83]         The Plaintiffs argued that the B.(K.L.) case, in finding that the government was not vicariously liable, was quite different from the situation in this case.  On the contrary, in my view, the situations are not only analogous, but there were closer ties between the operators of the school and the government in B.(K.L.) than between the Archdiocese and the orphanage in this case.  In that case, while the court emphasized the separation of the family unit from the government to encourage the role of foster parents, it was the government which contracted with the families, approved them, and provided, through the child protection authorities, the basis for most of the placements.  But it was not responsible for the day-to-day operation of each of the foster homes.  The Court found that the independence of the foster homes in managing their operations meant that the government could not be responsible, or liable, for their tortious actions.

[84]         In Broome v. Prince Edward Island, 2010 SCC 11 (CanLII) it was sought to impose liability on the government in respect of abuse at a privately-operated children’s home.  Similar to the B.(K.L.) case, the Court found that the selection of a suitable home, the regulation and funding of the home, and placement of children, was not sufficient to impose liability.  The government was not liable for abuse in the home.  Placement and funding was not sufficient to impose liability.

[85]         On the other hand, both the church and the government were found jointly liable for the actions of an employee of the church in the operation of an aboriginal residential school in the Blackwater case.  On the facts, it was a joint operation between the federal government and the church.  The government had a statutory mandate for aboriginals under The Indian Act, R.S.C. 1985, c. I-5, and had certain authorities under the management agreement with the church.  The church operated the school, and was the employer of the tortfeasor, with the government having the authority to approve hiring and other forms of control.

[86]         I was referred to an American case as the only one where the facts are analogous to this one.  In Doe v. Brouillette (2009), 906 N.E. 2d 105 (Ill. App. Ct.), Appellate Court of Illinois, First District, First Division, the Roman Catholic Archdiocese of Chicago was sued for the misconduct of a Christian Brother.  The evidence disclosed there were two types of schools, those run by the Archdiocese,

and those by orders, including the Christian Brothers.  In declining to impose liability on the Archdiocese, the court considered a number of factors:

1.     The Archbishop had no supervisory role at the school;

 

2.     The Archdiocese considered the school as a Catholic school, and part of the Archdiocese;

 

3.     The property on which the school was built was deeded to the Brothers by the bishop;

 

4.     The Archbishop had some authority for ensuring Catholic institutions adhered to Church teachings;

 

5.     The tortfeasor was not on the Archbishop`s payroll;

 

6.     There was no direct chain of authority between the tortfeasor brother and the Archbishop, but Brothers were responsible only through their Superiors; and,

 

7.     The Archdiocese and the Brothers were separate corporations.

[87]         There is no precedent in Canada for the imposition of liability on a diocese in similar circumstances.  While the Illinois case is not binding, it may be persuasive based on the description of the relationship.  However, the basis for the imposition of liability must be found in the Canadian authorities cited.

[88]         To summarize, since the Bazley and Jacobi cases, vicarious liability may be imposed in an employer-employee relationship and a principle/agent arrangement.  It is also applied in other circumstances, such as parent/child, or vehicle owner/driver.  There was no allegation that the Archdiocese was the employer of the Brothers or any of the staff at the orphanage.  The Plaintiffs say the relationship between the Archdiocese and the individual tortfeasors was sufficiently close that the court should impute responsibility based on the principles of vicarious liability. 

Applying the law to these facts

[89]         The Plaintiffs say the Archdiocese should be liable for the criminal behaviour on the part of some of the Christian Brothers by various aspects of its involvement and control over the orphanage.  That involvement dates from the original discussions surrounding its establishment in the years after the Agreement of 1875 when the Brothers were becoming well-established as educators.  In the meeting convened by the BIS in December 1897 the church, through the involvement of the bishops, took a prominent role.  The government’s role was limited, but the historical record shows an approach to the bishops to take on the role, in exchange for some financial contribution.  While that contribution fell through, the orphanage was established with the involvement of the BIS, the diocese, and interested private individuals, who raised the funds and provided the land.

[90]         There does not appear to be any doubt that the support of the diocese was critical to the establishment of Mount Cashel.  Once the facility was built in 1898, the Christian Brothers began its operation for many years.

[91]         The Plaintiffs, in their Statements of Claim, describe the Defendant as:

… carrying out the religious, charitable and education purposes and uses of the Roman Catholic Church within the aforesaid Archdiocese, including control, direction and supervision of [The Christian Brothers of Ireland Inc. (“CBI”)] more specifically granting permission to the [CBI] to operate an orphanage at Mount Cashel.

[92]         To establish that there was sufficient “control, direction and supervision” of the orphanage by the Archdiocese, the Plaintiffs point to a number of factors which support the idea of involvement. 

[93]         First, it is submitted that the relationship between the Archdiocese and the Brothers was close, and that the intention of both was to operate the orphanage as a joint venture.  Second, the Archdiocese exercised ultimate authority over the

orphanage and the Brothers.  Third, the public perceived the Brothers as representatives of the Archdiocese.  Fourth, as evidence of the level of control exercised by the Archdiocese, there are several incidents of granting or denial of authority respecting certain fundraising events in the 1950’s.  Fifth, certainly following Confederation with Canada in 1949, and the changing public involvement in social services, the Archdiocese was involved in discussions with the government over funding and regulatory control of the orphanage.  Sixth, the diocese was the ultimate owner of the property on which the orphanage was built and was operated. Seventh, there were other indicia of control, generally relating to some of the staffing assignments and extra-curricular activities. Finally, it is submitted that aspects of Canon Law, or the rules governing internal relationships within the Church, provide for the responsibility of the Archdiocese.

[94]         I will discuss each of these factors. 

Close Relationship

[95]         The Plaintiffs submit that the underlying foundation of the relationship from the beginning was to operate the orphanage as a joint venture.  They point to the historical record, which discloses the involvement of the bishop of the day in the initial discussions with the Christian Brothers, and the cooperation of the diocese with the advocacy of the BIS in the 1890’s to establish the orphanage.

[96]         Evidence of this relationship is found in correspondence dated September 14, 1897 from the Colonial Secretary Robert Bond to Bishop Howley:

The government have had under their consideration the desirability of establishing in our midst a place where the waifs of the country who are brought before the Courts, and who are known to the police, may be reformed and cared for.

Appreciating the difficulties surrounding the operation of a reformatory or home of refuge to children of all religious persuasions, the Government are desirous of knowing whether your denomination would be prepared to take charge of such children as are now from time to time brought before the magistrates and sentenced or otherwise dealt with by them; and also of those children who are known to the

police as vagrants, and who have no homes or guardians, and by the establishment of a home, reformatory, or industrial school to provide for their reclaiming and the teaching them of some useful trade or mode of living by which they may become respectable citizens.  The Government would, of course, contribute for their maintenance a sum equivalent to what they now cost the Colony in the Penitentiary, that is, about $2 per week.

[97]         The record shows further correspondence, a reply by the bishop dated September 17, 1897, and correspondence from the bishop to Brother J.L. Slattery dated October 17, 1898.  All emphasize the interest of both sides in taking an initiative as suggested by Secretary Bond.  This is taken as indicative of supporting a finding of a joint venture. 

[98]         The Defendant submitted that notwithstanding the importance of the involvement of the bishop in the establishment of Mount Cashel, it was the Brothers who ultimately had to accept the invitation to commence operations.  There is no question that the evidence showed the prominence of the bishop at the initial public meeting.  Submitted into evidence was a report from the newspaper The Daily News from December 3, 1897, which indicated that the BIS invited the bishop to chair the meeting. 

[99]         However, the context is also important.  According to the historical survey of Dr. Fitzgerald, there were Catholic and non-Catholic members of the broader community who were present at the meeting.  The initiative was directed to solving the problem of care and schooling for orphan boys.  The bishop’s role was not paramount, but he was one of the visible leaders in the community.

[100]     Dr. Fitzgerald pointed out that while Catholics referred to “our” orphanage, that term spoke to the growing pride of the Catholic community taking its place in assisting those less fortunate.  It did not speak to “ownership” of the institution.

[101]     The Plaintiffs cited the Blackwater case as support for the concept of a “joint venture”.  In that case, the court found both the United Church and the federal government vicariously liable, based on their collaboration in the operation of residential schools for aboriginal children.  In the Supreme Court of Canada decision, Chief Justice McLachlin said, at paragraph 21-22:

21.      I turn first to the vicarious liability of the Church. . . .

 

22.      The trial judge made at least eight factual findings that support his conclusion that the Church was one of Plint's employers in every sense of the word and should be vicariously liable for the assaults.

[102]     In the Blackwater case, the facts showed a true joint venture, in that the government had a statutory duty and responsibility for oversight, and the Church had significant operational control over the school.  At paragraph 38:

38.      In this case, the trial judge specifically found a partnership between Canada and the Church, as opposed to finding that each acted independently of the other. No compelling jurisprudential reason has been adduced to justify limiting vicarious liability to only one employer, where an employee is employed by a partnership. Indeed, if an employer with de facto control over an employee is not liable because of an arbitrary rule requiring only one employer for vicarious liability, this would undermine the principles of fair compensation and deterrence. I conclude that the Church should be found jointly vicariously liable with Canada for the assaults, contrary to the conclusions of the Court of Appeal.

[103]     To apply the reasoning in Blackwater I would have to find there was close collaboration between the Archdiocese and the Brothers which would have been sufficient to create the relationship where a joint venture could be determined.  In my view, the evidence presented did not disclose that kind of relationship.

[104]     Dr. Fitzgerald testified about the historical connections.  He said the Archdiocese and the Christian Brothers were separate organizations, with little interaction on a daily basis.  He said that he reviewed the historical record from the documents available, covering a period of between 70-80 years.  He said the amount of correspondence between the two was limited.  He took that as evidence that the Brothers were running their own affairs and were self-regulating.

[105]     He described one incident, in the late 1950’s which he said demonstrated the lack of control by the Archbishop over the affairs of the Brothers.  At a time when education in the Province was run by the churches, the Archbishop had planned a new high school.  The Jesuit priests had designed the school and been involved in its establishment.  He said the record showed that the Brothers reacted vigorously, saying that if there was to be a new school, they should have first claim.  He reviewed over 500 pages of documents consisting in part of correspondence between the Archbishop and the Vatican.  It must be remembered that the Brothers were an order of Pontifical Rite, answerable only to the Vatican.  In the end, the Archdiocese backed down, and the school became Brother Rice High School, run by the Brothers for many years.  He said this incident demonstrated that the Archbishop had no authority over the Brothers.  In the end, another school was built for the Jesuits, and was the future Gonzaga High School.  

[106]     The evidence of these events demonstrated that, apart from involvement in the launching of the orphanage in the 1890’s, the role of the Archdiocese was limited to a supportive one.  It would encourage the giving of donations to the orphanage’s fundraising efforts.  After Confederation with Canada, and the changing role of the provincial government in social services, the Archbishop would advocate on behalf of the orphanage for regulatory initiatives in support of its activities, and for increased funding.  In this sense, it was supportive.  But there was no evidence of the kind of relationship in which a joint venture was found in the Blackwater case.  In my view, there was no basis to make a finding that this was a joint venture between the Brothers and the Archdiocese. 

Ultimate Authority

[107]     It was argued that because the Archdiocese was the highest Catholic authority within the Province, it possessed the degree of control and direction to justify imposing liability.  Even within the church organization there was a sense that the bishop or Archbishop was the top official for the Church in the Province.  It seemed clear that the Archbishop had some authority over Catholic institutions.  The extent of that authority is critical in determining whether a joint venture could be made out. 

[108]     During the trial, I permitted a video clip to be played which showed testimony of Fr. Dermot O’Keefe during the Hughes Inquiry into sexual abuse at Mount Cashel.  That inquiry was commissioned by the provincial government in 1989.  Its formal name was “Royal Commission of Inquiry into the Response of the Newfoundland Criminal Justice System to Complaints” and was headed by the Honourable S. H. Hughes, Q.C., a retired judge of the Ontario Supreme Court.  That Commission commenced its work in 1989, and issued its voluminous report in 1991.  Following the report, and arising from some of the Commission’s findings, several Christian Brothers were prosecuted and convicted of offences arising from sexual abuse of boys at Mount Cashel.

[109]     Fr. O’Keefe is now deceased.  He testified before the Commission from the perspective of his role as Secretary to the Archbishop in 1954.  He had written a note respecting an allegation of abuse at Mount Cashel.  Fr. O’Keefe had a doctorate in Canon Law.  He was called during the inquiry to testify about an incident which he considered sufficiently significant to record it in writing. This will be relevant below.  But in his testimony, he was asked by Commission counsel David Day, Q.C. why the complaint would have come to the Archbishop:

Q.  Do you know why the civilian, whose name has been deleted, came to the palace rather than reporting to a member of the lay religious at Mount Cashel about the matter, because the allegation did not in any way relate to a Christian Brother, it related to another civilian working at Mount Cashel?  Do you know why he would have come to the palace rather than spoken to the Brothers about the matter?

 

A.  I would presume that he wanted to go to the top to the Archbishop who had some authority, at least, over every Catholic institution in the diocese . . .

 

Q.  Some authority over all . . .

 

A.  But limited . . . you know

 

Q.  Limited.  To the extent that the Archbishop had some authority over the Papal Institute, the Christian Brothers, what was that authority?

 

A.  Well, I can only say roughly, because I’d need to study it, I’m rusty on all these things, but generally it would only be with regard to major abuses, such things like evident abuses that the Archbishop would step in, you know.  Ordinarily, their own Superiors would handle it.

 

 

Q.  Otherwise the Superiors within the Brothers would handle it?

 

A.  Yes.  

[110]     That exchange reflected Fr. O’Keefe’s view of the relationship of the Archdiocese with the Brothers.  First, that the Archbishop was viewed as the “top” of the Catholic hierarchy; and second, that the Archbishop had, in fact, little authority over the day to day matters involving the Christian Brothers.

[111]     The view was supported by the testimony at the trial of two experts in Canon Law.  Fr. Thomas Doyle was called by the Plaintiffs and Fr. Francis Morrissey was called by the Defendant.  Both men were qualified to testify generally on the relationships among various Catholic institutions, based on Canon Law. Their view was that the Archbishop, in Canon Law, is certainly the most significant authority in the Archdiocese.  However, according to both, that authority was limited.  The Archbishop’s ability to intervene in Catholic institutions, apart from the diocese itself, depended on whether it involved the teaching of doctrine, or whether the activity concerned was, in Canon Law, operated by an organization which answered directly to Rome, and not to the Archbishop.

[112]     Canon Law does not define the obligations which arise in civil law.  It can, however, shed some light on the internal management structure and the lines of authority which govern various entities within the Archdiocese.  In this case, the determination of vicarious liability is tied to the authority the Archbishop exercised over the operations of Mount Cashel and the activities of the Brothers. 

[113]     The reports and testimony of both experts were generally consistent, but there were differences in nuance in certain instances.  Fr. Doyle, in his testimony, acknowledged the greater experience of Fr. Morrissey.  When he was questioned about specific statements in Fr. Morrissey’s report, Fr. Doyle agreed in almost every case that Fr. Morrissey was correct. 

 

[114]     The Defendant was critical of some of Fr. Doyle’s background, and suggested it raised a question of bias.  Several articles of Fr. Doyle’s were submitted which were highly critical of the church hierarchy in several dioceses’, including this one, which the Defendant said indicated a predisposition which would diminish the credibility of his opinion. 

[115]     However, in his testimony before the court, Fr. Doyle’s opinion on the applicability of certain Canon Law principles to this case generally followed that of Fr. Morrissey’s.  Notwithstanding his personal views, as expressed in the submitted articles, there was little difference between his interpretation of the canons and that of Fr. Morrissey.  In his testimony he disclosed that he had been a student of Fr. Morrissey’s and acknowledged his superior expertise in relation to the Religious Orders. 

[116]     As a consequence, I found the opinion evidence of Fr. Doyle corroborative of that of Fr. Morrissey.  The two Canon Law experts shed considerable light on the lines of authority within the Church generally, and the Archdiocese in particular.

[117]     With respect to the issue of the ultimate authority in the Archdiocese, both confirmed that the Christian Brothers, being a Congregation of Pontifical Rite, did not answer to or report to the Archbishop, but directly, through their internal organizational structure, to Rome.  It might be said that the Archbishop’s relationship with the Brothers was akin to the relationship between the government and a Crown corporation.  But that does not capture fully the lines of authority.  Even though a Crown corporation might be independent from the government where liability for tortious acts is concerned, the government still has ultimate legislative authority over the corporation.  However the government is not generally involved in the day-to-day administration of the corporation.  In like manner, the Archbishop may appear as the “head” of the Catholic community, but there was no evidence of involvement in the day-to-day operation of the orphanage.

[118]     One example serves to illustrate the challenge in defining the relationship.  A letter between the Archbishop and the Superior of the Christian Brothers in New Rochelle, New York, was submitted into evidence.  It was dated August 28, 1954.

In it, the Archbishop requests to be notified of appointments of personnel to the various institutions run by the Christian Brothers.  He raises two justifications for this request:  first, that it is a matter of courtesy to notify the Archbishop of changes in personnel; second, that as Chairman of the education board, the Archbishop is subject to provincial legislation that requires the board appoint teachers in Catholic schools. 

[119]     The Brothers responded following a meeting of the consultors, or the governing body, in New Rochelle.  The minutes of the meeting of September 3, 1954 reflect consideration of the letter as a request:

The Council discussed a letter from Archbishop Skinner of St. John’s, Nfld., in which His Excellency requested that he be notified of appointments of superiors and of changes of personnel in our schools in the Archdiocese.  It was agreed that such notification would be given and that His Excellency should be so informed.

[120]     Fr. Doyle commented on this request in his opinion as being evidence of the control exercised by the Archbishop.  At paragraph 32 of his report:

32.      The archbishop of St. John’s appears to have exercised significant control over the orphanage, perhaps even more than is mandated by Canon Law.  He had the right to approve all teachers of religion but appears to have gone beyond that by asking the Brother provincial to notify him of all changes in personnel in all Christian Brothers’ institutions in the archdiocese.  He also sat as chairman of the local Board of Education which, according to Newfoundland civil law, appointed all Catholic teachers in the City.

[121]     However, on cross-examination, Fr. Doyle’s response to this letter was more nuanced.  He agreed that, vis à vis the Brothers’ schools, the Archbishop had the right to approve teachers of religion.  He also agreed that in response to the Archbishop’s request to be advised of personnel changes, the Brothers could have said no.  He opined that if the Archbishop received a negative response, his only option would have been to go up the chain of command, as far as Rome if necessary.  He could not have directed the Brothers to comply.  In fact, on examination of the two documents, it is clear that this exchange reflected only the Brothers’ acceding to his request and did not imply control.

[122]     The evidence disclosed that while the Archbishop was the ultimate Catholic authority in the Archdiocese, he had, in fact, little control or involvement over the operations of the orphanage.  His involvement with matters internal to its operation was limited to aspects of the curriculum relating to religious instruction, and the delivery of certain religious ritual services to the residents and the Brothers.

Public Perception

[123]     The Plaintiffs argued that public perception of the Archbishop’s authority would see him with a significant level of control over the orphanage.  Several pieces of evidence were submitted in support.

[124]     I was referred to correspondence dated December 24, 1956, between Brother Carroll, the local Superior, to Archbishop Skinner.  The purpose of the letter was to forward a cheque arising from fundraising efforts on the part of the Brother’s for social welfare purposes of the Archdiocese.  In the letter he refers to himself as “Superior of one of Your Grace’s Institutions”.  It was argued that this reflected the public perception of the role played by the Archbishop toward the orphanage, as well as other institutions within the Archdiocese.

[125]     Counsel emphasised the influence wielded by the Archbishop by reference to the fact that Bishop Howley, who was instrumental in the founding of Mount Cashel, also laid the cornerstone for the construction of Cabot Tower, a landmark in St. John’s, in 1897.

[126]     That influence was further demonstrated by an exchange of letters between Bishop Howley and Robert Bond, the Colonial Secretary, in September 1897.  In that exchange Mr. Bond approached the bishop to gauge his interest in establishing an institution for vagrant children.  He noted the government’s interest in supporting such an initiative by a contribution to the cost.  The bishop’s response was positive, and assured the Secretary that any such institution would be “carried on in such a manner as shall amply satisfy all the demands required by any Act of Parliament. …”

[127]     These examples serve to highlight the public persona of the bishop, later Archbishop, as a representative for the Roman Catholic community.  However, notwithstanding the public profile they reflect, there is nothing in these examples which at the same time leads to a basis for vicarious liability for the actions of the Brothers.  A profile by itself is no indicator of liability.  By that measure, any individual, organization or government which promotes the establishment of an agency to carry out an activity could be held liable for the misconduct of that agency. 

Control over Finances and Fundraising

[128]     Supporting an argument that the Archdiocese should be vicariously liable the Plaintiffs presented evidence of the Archbishop’s control over finances and fundraising for the benefit of the orphanage.  Various exchanges of correspondence between them are cited to ground the proposition that there was an element of control exercised.

[129]     A letter from Brother J.V. Warren to Fr. R.J. McGrath dated November 11, 1951 seeks approval of the Archbishop for the holding of the annual raffle for fundraising purposes for the orphanage.  The reply approving the event is dated November 16, 1951. 

[130]     A letter from the president of the Mount Cashel Old Boy’s Association to the office of the Archbishop dated June 16, 1952 seeks an exemption from certain Archdiocesan regulations governing the holding of bingo fundraising events.  That organization was made up of alumni of the orphanage, and was not directly involved with its operation.  It did, however, organize fundraising events to support activities at the orphanage.  The response, dated June 25, 1952, declined to grant an exemption from the conditions of holding such events.

[131]     A letter from Brother Carroll to Archbishop Skinner dated June 10, 1953, sought permission for a fundraising garden party.  By reply dated June 17, 1953 permission was denied.  The Archbishop questioned the need for an additional

fundraising effort directed to Catholics by reference to a number of sources of funding to support Mount Cashel.  He then said:

Actually, in view of our numerous Collections in the Archdiocese and our many Church projects, those Collections which may be termed local should almost need to be restricted, in order to allow the Church to carry out normally the important Collections prescribed by the Holy See.  Of course, it is not my intention to do away with any traditional Collections as long as they are proven to be necessary for the Church and for our Catholic institutions in this country.

[132]     These exchanges are presented by the Plaintiffs as a reflection of the relationship between the orphanage and the Archbishop.  In addition, there is evidence in the form of minutes of meetings and correspondence that the orphanage sought on several occasions the support and assistance of the Archbishop in approaching the government for an increase in its grant for the maintenance of the children so placed.  The documentation presented discloses such interactions in 1956 and 1962. 

[133]     The Plaintiffs submit that these exchanges are part of the historical record which confirms that the Christian Brothers did not have the financial capacity to operate Mount Cashel independent of the Archdiocese.  They argue that these events, and others of a similar nature, represent indicia of financial control by the Archbishop over the orphanage. 

[134]     In fact, the evidence falls short of supporting this argument.  The evidence disclosed that Mount Cashel had several sources of revenue, some from the government, some from its own fundraising, and some through special events or collections from the community.  It sought support from the general population from its annual raffle.  It sought support from the Catholic community for an annual collection from the various parishes in the Archdiocese in aid of the orphanage, along with other events such as the annual garden party.

[135]     According to the testimony of both Archbishop Currie and Dr. Fitzgerald, the authority of the Archbishop was sought for initiatives which drew on the support of the Catholic community because of the need to coordinate fundraising efforts within the broader community to ensure funds were not sought from the people too often. 

[136]     On the issue of funding, and a source of control suggestive of liability, Justice Cromwell in the Broome case dealt with funding which was received by the private children’s home.  At paragraph 45 he said:

45.      The appellants also rely on the financial relationship between the Home and the Province as a basis for finding proximity. The Province indirectly funded the operation of the Home in the form of grants between 1928 and 1976. Between 1928 and 1967, these grants represented anywhere between 8 and 18 percent of the operating receipts of the Home in a given year. These amounts increased to between 16 and 31 percent after 1968 as a result of arrangements between the Province and the federal government under the Canada Assistance Plan (Agreed Facts #11-12). However, the important point for the purpose of this appeal is that these grants were given to the Home with no restrictions and no accountability requirements; their use was solely at the discretion of the Board of Trustees (Agreed Fact #13). With respect, such a financial arrangement cannot support the existence of sufficient proximity between the Province and the children.

[137]     The accountability issue is relevant in this case.  Although Mount Cashel relied in part on the fundraising done by and on behalf of the Archdiocese, there was no question of accountability for these funds.  Notwithstanding the comments of Archbishop Skinner in his letter to Brother Carroll in June of 1953, it was clear that the operation and management of Mount Cashel was carried out without oversight by the Archdiocese.

[138]     In the context of his testimony on Canon Law, Fr. Morrisey responded to questions about the June 10, 1953 request.  He noted that any fundraising carried out within any diocese requires the local bishop’s approval.  He said it is a co-ordinating role.  He disagreed that it was a degree of control over operations, but only his authority to regulate and co-ordinate financial appeals to the Catholic community. 

[139]     That letter was instructive for another reason.  In his justification for seeking this additional fundraising event, the Superior laid out the financial predicament of

the orphanage.  He noted the income from the government when compared with the expenses of supporting some 190 residents resulted in a considerable deficit.  The impression was left that it was necessary to apprise the Archbishop about finances because he would not otherwise have known.  I would think that if the Archbishop had the degree of control over operations argued by the Plaintiffs, this information would not have been necessary.

[140]     With respect to interactions with the government on behalf of the orphanage, I was presented with several documented exchanges between the Archbishop and government officials in this regard.  All reflected the interest of the Archbishop in advocating on behalf of the Catholic orphanages, including Mount Cashel, to obtain additional funding.

[141]     In all the documented exchanges between the Archbishop and the government, there is little mention of Mount Cashel.  The plural of “orphanages” is used, to indicate, likely, that the discussions concerned all the orphanages within the Catholic community, including Belvedere run by the Sisters.  This would explain why the government went to the Archbishop and not directly to Mount Cashel.

[142]     The Plaintiffs submit that these events provide sufficient evidence of control and direction to justify the imposition of liability on the Archdiocese.  The Defendant argues that in all of these events, the issues involved the relationship of Mount Cashel with the external environment, and did not involve the Archdiocese at the level of operations.  In the case of fundraising, in all cases the orphanage was seeking contributions from members of the Catholic community through the various fundraising events proposed.  The Archbishop was the highest Catholic authority within the Province, and occupied the logical office to co-ordinate all of these activities. 

[143]     The evidence presented demonstrated, in my view, very few interactions between the Archbishop and the orphanage during the period with which we are concerned.  I have noted three letters seeking approval for fundraising events, and two approaches to the government in respect of increasing its subsidy for the boys in the 10-12 year period.  This certainly does not indicate serious involvement of the

Archdiocese in the financial affairs of the orphanage or even the fundraising efforts.  The role of the Archbishop in being an advocate for the orphanages generally, and in attempting to regulate the number of occasions the Catholic community is approached for funds appears to accentuate the separation between them.  If this was a joint effort, the fundraising efforts would be one of a collaboration between them rather than one of seeking approval to access the Catholic population for contributions. 

[144]     The Plaintiffs have submitted that these efforts amounted to an assertion of control over the operations of the orphanage.  Without an assessment of the extent of that control, it is probably likely that there is an element of direction inherent in the effect of the events noted.  However, control of one aspect of its operation, by itself, is not one of the indicators of vicarious liability.  By way of analogy, in civil society, the government exerts control through its legislative and regulatory powers.  That does not make it liable for the tortious actions of, for example, Crown corporations or agencies, without something more. In some respects, the Archbishop, in regulating access to the Catholic community, is in a similar position to the government vis à vis Crown agencies.  Both represent ultimate authorities, and a degree of control, without thereby necessarily assuming liability.

[145]     In my view, the evidence of involvement of the Archbishop in facilitating the efforts of the orphanage in fundraising and advocating on its behalf to the government does not, by itself, serve the Plaintiff’s argument that vicarious liability should be found against the Archdiocese.

Governmental Relations

[146]     The Plaintiffs referred to a series of exchanges between ministers of the Crown and the Archbishop respecting certain policies applicable to orphanages.  They suggested that the government, at least, saw the Archbishop as a governing entity. 

 

[147]     They also cited H.(H.) Estate v. Newfoundland & Labrador, 2010 NLTD 47 (CanLII) where documents were filed which appear to demonstrate the close involvement of the Archdiocese with the operation of Mount Cashel in respect of the admission of children.  Those documents are like those referred to above, in which the government discusses with the Archdiocese some of the policy issues related to admission.  Justice Leblanc found that the Church was involved.  He said, at paragraph 19:

19.      Based upon my review of all of the material provided to me, I conclude that the Government and the churches took separate and distinct roles with regard to children placed in orphanages such as Mount Cashel and those other children that came into the custody and care of the Director of Child Welfare as being "neglected" or "delinquent" under the requisite legislation. Historically, the churches had taken on the responsibility of caring for children placed in the orphanages, either orphans or those placed there by their parents due to an inability to provide for or care for them. While the Government provided a "head grant" and other financial assistance for the care of these children, I am satisfied that the churches were fully responsible for their admission and ongoing care and supervision with no other Government involvement. This arrangement was clearly evidenced by the legislation excising any duty on the Director of Child Welfare to visit and inspect orphanages.

[148]     The Plaintiffs argued that this case establishes the involvement of the Archdiocese in critical aspects of the orphanage’s operation, and an acknowledgement by the government that the bishop, certainly in the 1950’s, at the time relevant to this case, was the person to be contacted on such matters.  However, I do not think the case stands for that proposition.  It must be noted that the H.(H.) Estate case focused on the role of the government, not on the Church.  This case is different, because it focuses on the role of different organizations within the Catholic community, and their relationship with each other.  All that can be taken from the decision of Justice Leblanc is that the government did not have an operational or guardianship role.  It says nothing about the distinction between the Archdiocese and the Christian Brothers.

[149]     A variety of records were submitted in evidence relating to interactions between the government and the Archdiocese.  They deal with two broad issues.  First, admission policies for orphanages generally, including the Roman Catholic orphanages.  Second, the financial subsidy paid by the government for the maintenance and upkeep of those children admitted to the orphanages.  The documents submitted into evidence span the period from February 1952 to October 1969.

[150]     The character of the documents reflects the actors involved.  Between February 29, 1952 and November 12, 1953 there are exchanges and records of meetings between the Archbishop and the Minister of Public Welfare concerning admission policies for orphanages.  The indication is that the Minister was interested in streamlining the policies to ensure that children in need were appropriately cared for by the various institutions attached to the several religious denominations, including the Catholic Church in the Province.

[151]     In virtually all the documents, both letters and records of meetings, involving the Archbishop, there is reference only to “orphanages” generally.  There were, at the time, two orphanages in the Province which were associated with the Catholic Church.  Belvedere, for girls, was operated by an order of Sisters.  Mount Cashel, for boys, was operated by the Christian Brothers.  It is evident that the Minister spoke with the Archbishop about policies related to orphanages generally, and specifically with respect to one of them.  Some of the correspondence appears to have also gone to other organizations for which orphanages were associated, including the Anglican Church, the United Church, and the International Grenfell Association.

[152]     The second series of documents deal quite specifically with the subsidy per child admitted to orphanages.  The documents include correspondence between government officials, the Archbishop, and the Superior of Mount Cashel, and internal government memos, including memoranda to cabinet and the resulting orders.

[153]     These documents reflect discussions and decisions of the government focused on financial support for those admitted to orphanages.  Much of the correspondence is directly between government officials and Mount Cashel, although the Archbishop is also notified when there is an increase in the subsidy.  It is important to note once again that most of the correspondence with the Archbishop refers to “orphanages” and does not generally mention “Mount Cashel”.

[154]     These documents indicate a significant role for the Archbishop in discussing policy applicable to orphanages, and as an advocate for change in government policy affecting those institutions.  I accept the existence of that influential role.  It is a similar role that the heads of other religious denominations had with respect to government policy.  These documents undoubtedly reflect discussions surrounding the requirements of the regulatory framework set by the government for orphanages. 

[155]     The key question, in determining the existence of circumstances which might suggest that vicarious liability should apply, is the degree of operational control.  Involvement in negotiations on policy matters, by itself, is not evidence of exertion of control over operations by the Archbishop.  Other than assisting as an advocate, the record does not implicate the Archbishop in operational decision-making involving Mount Cashel, or any of the orphanages.

Ownership of Property

[156]     The Plaintiffs argued that another incident of control rested in the ownership of the land on which the orphanage was situate.  The land was conveyed from the Archdiocese to the Brothers by Deed dated January 29, 1903.  It was conveyed for the purposes of operating the orphanage for boys and was to be held in trust by the Christian Brothers for that purpose.  The conveyance contained a reversion clause where ownership would revert to the Archdiocese should the Brothers cease operating the orphanage.

[157]     The orphanage ceased operating in about the year 1989, and the building was subsequently demolished.  The land was sold to a developer by the Archdiocese by Deed dated October 23, 1998.  The evidence disclosed that the proceeds were shared with the Christian Brothers, no doubt in recognition of the many investments made by the Brothers in the property over the years.  It appeared evident that the funds received by the Christian Brothers formed part of the bankruptcy estate from which victims of abuse at the hands of the Brothers, including the Plaintiffs in this case, have already received some compensation.

[158]     The reversionary interest held by the Archbishop could not in any way have been an indicator of involvement or control over operations.  By itself, property ownership would be irrelevant.  Would it have made a difference if the Brothers leased the land from a commercial interest?  In that case, could it be said that the lessor bore responsibility?  In my view, this is not an issue for consideration of the imposition of vicarious liability on the Archdiocese.

Other Indicia of Control

[159]     There were several other events and circumstances which were pointed to by both sides as bearing on the issue of involvement of and control exercised by the Archbishop. 

[160]     There is correspondence dated August 30, 1952 where the Superior of Mount Cashel writes the Archbishop concerning the establishment of the Sea Cadets at the orphanage.  He says, in the penultimate paragraph:  “If it in no way interferes with your Grace’s plans for the future I would like very much to establish the Sea Cadets at Mount Cashel.”

[161]     On September 6, 1952, the Archbishop replies, saying: “I concur entirely with your desire to approach the Sea Cadet organization with the request that they commence a section at Mount Cashel Orphanage.”  This exchange is presented as evidence of requiring the approval of the Archbishop for an extracurricular activity, and hence the exercise of an element of operational control.

[162]     There was evidence that for most of its life, Mount Cashel was assigned a priest as chaplain to conduct religious services and rites for the boys at the orphanage.

[163]     There was evidence, from one Plaintiff and another witness, and from the historical record, that priests in parishes would play a role in the admission of boys to the orphanage.  However, of the four Plaintiffs, only one testified that a priest was instrumental in his admission to Mount Cashel.  The others cited the initiative of family members in the arrangements for admission.  For those for whom priests played a role, as agents of the Archdiocese, it was argued that it reflected an influence on operations.  It was also clear that others had a role in admissions, including government officials. 

[164]     Two of the Plaintiffs were expelled from the orphanage because of a physical altercation between them and Brother Lasik.  The Brothers were responsible for that decision, and there was no involvement of anyone from the Archdiocese.

[165]     This is consistent with the evidence of all of the Plaintiffs.  In their testimony they were almost totally silent on the presence of either priests or the Archbishop in the day to day life of the orphanage.  Other than a visit by the Archbishop on a special occasion, or religious services conducted by the chaplain, their testimony indicated an almost total absence of any agent of the Archdiocese.

[166]     One witness, a former resident who was not a Plaintiff, testified that from the perspective of the boys, it was the Brothers who were in the parental role.  The Brothers gave care, disciplined, and provided instruction to the boys.

Internal Church Governance – Canon Law

[167]     While it is civil law which determines the question of liability, Canon Law may inform the analysis by providing insight into the internal governance structures of the Church.  These may be relevant in defining whether, under those rules, there was a duty on the Archbishop to become involved in the operations of the orphanage.  I see the Canon Law as akin to the articles of incorporation governing corporate relationships.  They may not determine civil liability, but they can define the expectations and responsibilities of the various actors.

[168]     There are a number of questions for which Canon Law principles may be relevant in this case.  For example, was the relationship between the Archbishop and the Christian Brothers a hierarchical reporting and supervision arrangement, like a supervisor/subordinate, or employer/employee?  Remember that the cases that discuss vicarious liability are, for the most part, questions of employer/employee relationships.  In addition, whether there was a reporting relationship between the Superior of Mount Cashel and the Archbishop, did agents of the Archdiocese have the right, or the duty, to intervene, or to “visit”, in operational matters and ensure that administration and management, as well as conduct, was in accordance with accepted practices.

[169]     Defining the Canon Law relationships is the starting point for an assessment of civil law responsibility.  In Dodd v. Society of the Love of Jesus (1975), 1975 CanLII 1075 (BC SC), 53 D.L.R. (3d) 532, 1975 CarswellBC 306 (S.C.) the dispute concerned the governance of an institute, an order of Sisters, of the Roman Catholic Church.  Justice Mackay described the reluctance of civil courts to get involved in internal church matters, at paragraph 42:

42.      The reluctance of civil courts of law to interfere in internal church matters was well stated by Patterson J.A. in McPherson v. McKay (1880) 4 O.A.R. 50:-

 

The functions of a Court of law exclude the discussion of the doctrines, government, or discipline of voluntary religious associations, except when they become elements in the adjudication of controversies respecting property, contracts, or other civil rights. The attempt to deal with such questions is always a matter of delicacy, and cannot be undertaken with any confidence without ample information upon all the topics which require consideration.

[170]     The Court will be deferential to matters of internal processes in the Church.  However, in this case, those internal processes are relevant in the adjudication of the rights as between the Plaintiffs and the Defendant.

[171]     In this Province, the Court of Appeal commented on this issue, in John Doe v. Bennett, 2002 NFCA 47 at para 96.  Canon law may be relevant, where, on the facts, it provides guidance as to whether a party may be vicariously liable for the actions of a tortfeasor. Justice Marshall said, at paragraph 96:

96.      Further, that is not to say that the organizational structure and the operational rules of the Roman Catholic Church are not relevant to this case. As has already been mentioned, it is the organizational structure which gives a bishop his administrative power within the Church. It is the work of the Church which a bishop is charged with doing. In his analysis of the issues the trial judge referred to the Code of Canon Law.3 Canon law is not determinative of the issues here. That is, one does not apply canon law to determine if the appellants are liable to the respondents. One applies the common law. However, the trial judge, in my view quite properly, made reference to canon law to make findings respecting the duties of priests, bishops and metropolitans in the Roman Catholic Church. All of these are relevant in a consideration of the factors, outlined by McLachlin J. in Curry, which assist in determining whether, as a matter of policy, the appellants should be vicariously liable for the torts of Bennett.

[172]     Both Fr. Morrissey and Fr. Doyle provided their opinions on the interpretation of Canon Law to this case.  Both used the 1917 Code of Canon Law, as it was the version in effect during the relevant period.  Fr. Doyle described Canon Law as a collection of laws governing the Church.  He said it was codified for the first time, and the 1917 version was promulgated in 1918.  That was the version which governed the church and its institutes from 1917 until 1983, when a revised Code was published.

[173]     Fr. Doyle described the bishop as the source of authority in the diocese.  His approval is required before any religious order, such as the Christian Brothers, could establish an institution within the diocese.  As described above, the bishop’s authority is significant in respect of an Institute of Diocesan Rite, but quite limited in respect of an Institute of Pontifical Rite.  Notwithstanding the requirement for the bishop’s approval to establish an institute, for an order of Pontifical Rite, the bishop would have to follow the chain of command if he wished the order to cease operations in the diocese.  In other words, he would have to request the order to leave, and if a negative response, the bishop would not have the power to evict them on his own.  This particular example is only illustrative of the limits on the authority of the bishop when dealing with an order of Pontifical Rite.

[174]     Fr. Morrissey commented on the 1875 Agreement as containing provisions which reflected the limits of the bishop’s authority to operate independently of the

diocese.  That agreement was consistent with his understanding of the structure governing the relationship between the bishop and the Christian Brothers.

[175]     Generally, the bishop in any diocese had the right of “visitation” – that is to oversee the various works being carried out.  That right was applicable to orders of Diocesan Rite.   Orders of Pontifical Rite were exempt from such oversight in most matters.  The Christian Brothers, in addition to the independence from the local bishop as an order of Pontifical Rite, had additional privileges dating from certain exemptions given by the Vatican in the 19th century.  Fr. Morrissey, after discussing these privileges, or “indults”, noted in his report that “. . . not only did the Archbishop of St. John’s not have the obligation to visit the orphanage, he was even forbidden by the Holy See to do so.”

[176]     In his testimony, Fr. Doyle agreed that his report was written without reference to these indults, as he was not aware of them.  He agreed with Fr. Morrissey that the Brothers possessed those privileges, but he disagreed that the scope of the exemption from oversight by the Archbishop was as extensive as suggested.

[177]     Fr. Doyle said, in paragraph 15 of his report, that “. . . the Archdiocese of St. John’s had direct authority over Mount Cashel Orphanage and the work of the Christian Brothers.”  Fr. Morrissey specifically disagrees, and says this comment is “. . . simply not correct.”  Given Fr. Doyle’s testimony that he would defer to the expertise of Fr. Morrissey, I am inclined to accept Fr. Morrissey’s interpretation.  However, as between the two experts, there are common aspects to their opinion.

[178]     Both agree that the Archbishop had authority over pastoral matters, that is, the religious instruction and public worship involving the boys at Mount Cashel.  They both agree that the Archbishop had no right to be involved in operating the orphanage.  While he had the right to approve those who provided religious instruction, he was not in a position, as Archbishop, to hire, assign and fire teachers and other staff.  The Archbishop did not have any authority over day-to-day operations. 

[179]     This interpretation by the Canon Law experts was consistent with other testimony at the trial.  The current Archbishop, Martin Currie, accepted the view that the Archbishop had no authority to get involved in the operations of Mount Cashel.

[180]     Brother Anthony Murphy was discovered at lawyers’ offices in New York on June 3, 2016, during a break in the trial.  A transcript of the discovery was entered into evidence by consent of both sides. 

[181]     Brother Murphy is now retired, but for many years was a leader in the Christian Brothers in this Province, and in other locations in Canada. He spoke of his understanding of the distinction between “pontifical rite” and “diocesan rite” as a young Brother.  He said for the Brothers, their independence was a source of pride.  It meant there could be changes in personnel, policies and assignments without reference to the local Archbishop.  He said any directive from the Archdiocese would be rare or unheard of.  In reference to the possibility of involvement of the Archbishop he said, at page 54 of the transcript:

… it would be talked about probably as a sore point because it would speak to eroding of sense of autonomy.  You invited the brothers into your diocese knowing that it was a papal institute.  To start micro-managing or interfering with or something of that nature would enter into the history, spoken and unspoke, of the Brothers’ relationship with structural church.

[182]     Similarly, Fr. Francis Puddester, the current Vicar General, or the second highest authority in the Archdiocese, testified.  He understood that orders of Pontifical Rite, or Papal Institutes, were not answerable to the Archbishop, but were answerable to Rome.

[183]     Another issue concerned the concept of “visitation” by the “local ordinary”, or bishop, in respect of educational and other institutions.  Both experts opined on this issue, with some interpretative differences.  Fr. Doyle took the view that, notwithstanding the existence of Institutes of Pontifical Rite, which described the orphanage operated by the Christian Brothers, the Archbishop had the duty to visit regularly to examine, in particular, adherence to religious practices and instruction.  He said this would have enabled an examination of the abuses of which he had been aware.

[184]     Canon 1381 and 1382 seem to be relevant in describing the duty of the bishop in this regard.  The following excerpts from one translation are instructive:

Canon 1381

1.      The religious instruction of youth in any schools whatsoever is subject to the authority of and inspection by the Church.

 

2.      Local Ordinaries have the right and duty of being vigilant about any schools in their territory lest in them something be found or done against faith or good morals.

Canon 1382

Local ordinaries either personally or through others can visit any schools, oratories, recreation areas, patronage, and so forth, that are concerned with religious or moral instruction; from such visitation no schools or any religious are exempt. …

[185]     Fr. Doyle took the view that this imposed on the Archbishop an obligation to intervene if he became aware of something “that was either harmful or potentially harmful to a student …” (Report of Fr. Doyle, February 20, 2010, paragraph 30) However, he later qualified this view, in his report of 2016, at paragraph 9:

9.         … Consequently, the official visitator, either the local Ordinary or in the case of the Christian Brothers, the major superior, has an obligation to take action if he becomes aware of the commission of a grave abuse.

[186]     This later opinion reflects the greater autonomy of an Institute of Pontifical Rite, such as the Christian Brothers.  Fr. Morrissey’s opinion was even stronger, and

rested on the indults, or exemptions, specifically given to the Christian Brothers in the 19th and early 20th centuries by Rome.  These exemptions meant that the duty of visitation did not apply in the case of the Christian Brothers.  He said, at paragraph 12 of his report of 2013:

12.      Archbishop P.J. Skinner explicitly noted that the Christian Brothers of Ireland “are exempt from the Canonical Visitation.”  Therefore, it follows that not only did the Archbishop of St. John’s not have the obligation to visit the Orphanage, he was even forbidden by the Holy see to do so.

[187]     While Canon Law is not determinative of responsibilities imposed by the civil law, it can define the relationships among various parts of a religious organization such as the Catholic Church.  I take it that it would not be a normal part of his responsibilities for the Archbishop to intervene in the activities, or even inspect and examine the operations at the orphanage on any regular basis.  I am satisfied that even under Canon Law, if he became aware of abuse, then he would have an obligation to intervene, although his remedy would be to go to the local Superior of the Brothers, and in the absence of a satisfactory response, continue up the chain of authority as far as the Vatican, if necessary.

Analysis on Vicarious Liability

[188]     Vicarious liability for the actions of an employee or subordinate requires that there be a close connection between the intended defendant and the enterprise which gave rise to the tortious conduct.  It must be remembered that liability in this context is imposed only based on the relationship, not on any tortious conduct, since usually the defendant is an innocent party.  Otherwise negligence would be the basis for the imposition of liability.

[189]     In this case, there would be little doubt about the imposition of liability on the Christian Brothers organization in these circumstances.  It was that organization which hired the Brothers to teach and to generally supervise the orphanage.  It was the Brothers’ organization which set the curriculum, the policies governing the daily

routines, the meals, the bed-times and activities of the boys on a 24-hour basis.  The Archdiocese did none of these things. 

[190]     The Archdiocese was not the employer of the Brothers.  It did not engage lay-workers, such as tradespeople or care-givers. It did not fire or reassign Brothers or lay-workers. It was not the guardian of the boys, nor did it give them care.  It did not operate the orphanage, nor did it set the curriculum, admit the boys, order food, set internal discipline, or generally direct activities within the orphanage.  The Brothers dealt with all these matters.

[191]     The most common circumstance in which vicarious liability has been imposed is where the tortfeasor is an employee of the defendant. Other circumstances where liability has been imposed are quite limited and include where the defendant is engaged in a joint venture with the employer: Blackwater.  No authority referred to me has found liability in circumstances even remotely similar to this case.  In B.(K.L.) the Supreme Court did not impose liability against the government even where the government was responsible for the selection of foster homes and foster parents, entered into contracts with each of the homes, had the legislative competence to regulate their activities, and through the child protection system, was responsible for most of the admissions.  The result in the Broome case was similar.

[192]     An examination of all of the events and communications noted above demonstrate that during the period with which we are concerned, that is in the 1940’s and 1950’s, there was no pattern of involvement or control by the Archdiocese over the day-to-day operations of the orphanage.  From the evidence of Dr. Fitzgerald, who did an exhaustive search of the records available, the events and communications noted represented a history of very sparse communication between the Archdiocese and the orphanage.  While the passage of time has impacted on the evidence in this case, as potential witnesses are deceased or unable to testify, it may be said that the paucity of documentary evidence of interactions may be related to several factors:

1.     There was little actual involvement by the Archdiocese in the operations of the orphanage and the activities of the Brothers, recognizing:

a)     that the Brothers, under Canon Law, were a separate entity, and had the status of an Institute of Pontifical Rite which precluded Archdiocesan involvement; and,

 

b)   by virtue of their status, the Brothers jealously guarded their independence;

 

2.     If there was greater involvement than that indicated by the evidence, then the records have disappeared with the passage of time.

[193]     In the absence of evidence of control over operational matters, or the assumption of responsibility for the day-to-day affairs of the orphanage, there was nothing in the evidence which would give rise to the kind of relationship which would form the basis for vicarious liability.  The Archdiocese and the Brothers were separate corporate and organizational entities.  They operated independently of each other.  Canon Law confirms they are separate, and that the Archdiocese has no authority over the operations of the Brothers.  The civil law confirms their corporate separateness as well.

[194]     The Archbishop’s role in many of the communications and events described above was, as have noted above, analogous to the role of the government vis à vis its subordinate agencies.  It has regulatory authority, as well as a policy interest in the establishment of various agencies for the carrying out of objectives in a variety of areas.  The government does not, as a consequence, bear the liability for the actions of the corporation.  It may end up being responsible for the financial consequences, but that is by operation of the funding process for such activities, and not by any legal process.

[195]     When the Archbishop collaborated with others in 1897 to invite the Christian Brothers to establish an orphanage, he did not, thereby, become the operator of the institution.  Where the Superior of the Brothers sought approval for a fundraising initiative, the role of the Archbishop was only that of one regulating such activities in the broader Catholic community.  It did not thereby become implicated in the running of the orphanage.

[196]     Where the government of the day contacted the Archbishop about policies and funding, rather than the Brothers, it was merely a recognition of the fact that he was a representative of the broader Catholic community, and not the Director of the orphanage.  Being an advocate for institutions within the Catholic community does not, by itself, lead to the imposition of liability.

[197]     The Archbishop’s role as the senior authority in the Catholic community does not, by itself, impose the duties which might lead to liability.  Again, this is analogous to government leaders who are senior authorities in civil society, but who would not be liable, by that role alone, for the conduct of public agencies such as Crown Corporations.  In like manner, a perception on the part of the public that a leadership role in the Catholic community might place responsibility on the Archbishop would not, without something more, be the basis for the imposition of liability.  The only common element throughout was the fact that the Archdiocese and the orphanage were viewed as Catholic, and shared the Catholic faith.  That alone cannot give rise to liability.

[198]     If one examines the policy reasons for imposing liability, the Supreme Court of Canada in the Bazley and Jacobi cases set out clear direction.  It involves elements of control and direction of the enterprise, and the ability to pay damages.  The first, involving control, raises the question of who had most control over the perpetrators, and therefore had the most opportunity to curb tortious behaviour.  Based on the circumstances of the operation of Mount Cashel, the Archdiocese did not have the kind of connection with the tortfeasors such as to impose liability.  There was no legal relationship on a corporate basis: The Archdiocese and the Christian Brothers were separate entities.  On a Canonical basis, the Pontifical status of the Brothers governed the relationship. On a civil law basis, the Brothers ran the orphanage independently of the Archdiocese.

[199]     As for the ability to pay damages, the Archdiocese is the only party left which could do so.  The Christian Brothers organization, which would have been found vicariously liable, has liquidated its assets through bankruptcy proceedings to pay the claims arising from these actions, and others arising from their activities across North America. 

[200]     My conclusion is that the Archdiocese cannot be found vicariously liable for the tortious conduct of Christian Brothers.

Vicarious Liability of the Archdiocese for the Conduct of the Priest/Chaplain

[201]     The Plaintiffs submit that an alternate source of liability on the part of the Archdiocese is grounded in the knowledge of Msgr. F. Ryan, the priest assigned to be the Chaplain at Mount Cashel from 1952 until 1964.  That encompasses the period within which the Plaintiffs were abused by the Brothers.  It is submitted that he was negligent in his failure to intervene to prevent the abuses when he received knowledge.  There is no suggestion that he was complicit in the abuse itself.  However, it is alleged that his knowledge led to a duty to act, and a failure to do so amounted to negligence.

[202]     If Msgr. Ryan is a source of liability for the Archdiocese, it would be on the basis of the principles of vicarious liability, discussed above.  In order to find that the Archdiocese is vicariously liable, the Plaintiffs must prove three elements:

1.     First, that the relationship between Msgr. Ryan and the Defendant is sufficiently close as to make a claim for vicarious liability appropriate;

 

2.     Second, it must be demonstrated that any tort committed is sufficiently connected to the tasks assigned that it can be regarded as a materialization of the risks created by the Defendant’s activities; (B.(K.L.) at paragraph 19), and,

 

3.     Third, that Msgr. Ryan was negligent, and his negligence was the cause of the damages suffered by the Plaintiffs.  To find negligence on his part I must be satisfied:

 

a)     That he owed a duty of care to the Plaintiffs;

 

b)   That he breached that duty of care; and,

c)     That breach was the cause of the damages suffered by the Plaintiffs.

[203]     As for the first element, it has already been decided that a priest is an employee of a diocese for the purposes of considering vicarious liability.  See Bennett at paragraph 32 of the Supreme Court decision, where a diocese and bishop were found vicariously liable for the sexual assaults of a priest assigned to a parish.  Without detailed analysis, I am satisfied that the relationship between Msgr. Ryan and the Archdiocese is sufficiently close that vicarious liability may be imposed.  As a priest of the Archdiocese, he was subject to direction and assignment by the Archbishop and carried out the mission of the Archdiocese at the parish housed at Mount Cashel.  On this basis, I find that Msgr. Ryan was effectively an employee, and if he was negligent in a manner that caused the Plaintiffs harm, the first element of vicarious liability is made out.

[204]     As for the second element, I am also satisfied that if a tort was committed by Msgr. Ryan, it would have been in his role as a chaplain or parish priest, as assigned by the Archbishop.  All the allegations relate to information received by him in his role as a priest/confessor.  If negligence arose from these circumstances, then the second element of vicarious liability is made out.

[205]     The third element in this case is the most important and will be controversial.  Msgr. Ryan is not accused of committing a tortious act of sexual abuse.  The Plaintiffs say he was negligent in not stopping it once he became aware of it, and therefore contributed to the damages suffered by the Brothers who committed the tortious acts.  Most of the testimony about abuse took place in the confessional.  That raises an issue about confidentiality, and the rules in Canon Law surrounding what is called the “Seal of the Confessional”. 

[206]     A review of the evidence indicates a number of occasions where there was interaction between the boys and Msgr. Ryan. 

 

[207]     The first of the Plaintiffs to testify, G.E.B. # 26 (E.F.), said that the priest was housed in separate quarters and he could not recall significant involvement on the part of the chaplain in the life of the orphanage.  In respect of the sexual abuse he suffered, he said he did not disclose to Msgr. Ryan, as he felt no one would believe it.

[208]     The second of the Plaintiffs to testify, G.E.B. # 50 (R.S.) said he thought Msgr. Ryan was the “head priest”, and he resided in his own quarters to which the students did not have access.  He saw the priest only at masses on Sunday and other special occasions.  He attended confession weekly, and said he told Msgr. Ryan about the physical abuse.  He said the physical discipline was too harsh, and thought perhaps something could be done about it.  He said nothing came of it.  He agreed that anything said in confession was confidential.

[209]     The third of the Plaintiffs to testify, G.E.B. # 33 (R.H.), did not indicate any disclosure of abuse in the confessional.  Like the others, he said he saw Msgr. Ryan only at weekly mass.

[210]     The fourth Plaintiff, G.E.B. #25 (J.E.) said that Msgr. Ryan was there for mass and confessions.  He said he did not remember the priest being around the boys, or anywhere at Mount Cashel, other than in the chapel.  He testified he did confess the incidents of sexual abuse by a civilian employee, an electrician, and one of the Brothers.  He said Msgr. Ryan did not react but concluded the confession in the normal way.  He said he understood confession was completely private and confidential.

[211]     The testimony of a non-plaintiff witness, E.V. was a little more detailed.  He was a resident at Mount Cashel during this same period.  While he said he was sexually abused by Brother Lasik, he was not a party to the proceeding. 

[212]     E.V. testified that he told Msgr. Ryan on three occasions about Lasik’s conduct.  On one occasion the priest responded that he had to go to confession, where he told him the same thing.  He said it was possible he was told to confess because

the priest thought he was lying, not because he believed the story about sexual abuse.  At that time, he said, the priest promised to speak to the Superior about the situation.  He testified that on another occasion he spoke to Msgr. Ryan and a brother, T.I. Murphy, about his loss of faith because of the abuse.  Shortly after that, he said, two of the abusing Brothers left the orphanage.

[213]     In addition to this testimony, the written statements of three individuals were submitted into evidence.  All three had been residents of Mount Cashel in the mid-1950’s, the period with which we are concerned in this case.  All three statements referred to disclosure of sexual assault in the confessional to Msgr. Ryan.

[214]     The Plaintiffs submit that these statements, by the Plaintiffs, one witness, and three written statements, represent repeated notices of abuse to Msgr. Ryan, and hence to the Archdiocese.  There are some problems with this assertion.

[215]     First, all of the statements, both the viva voce testimony and the written statements, reflect memories of adults when they were young children.  This presents two problems.  The memories may be faulty after some 60 years, and the context of the events may not have been known or may be misunderstood. 

[216]     Second, in all the evidence of these memories, the recollections were not clear either as to time or the words that were spoken.  For example, several of the statements were qualified by comments that the words used were not recalled.  That means it was unclear what the boys were trying to communicate at the time, and whether the priest understood, or believed, the comments made. To prove knowledge, even before establishing that there was a duty of care to do something about it, the Plaintiffs have to demonstrate on a balance of probabilities that the disclosure would have been clear and evident to Msgr. Ryan. 

[217]     Third, the context of these utterances in the confessional is unknown.  We do not have the testimony of Msgr. Ryan, or anyone else alive at the time, who could indicate if anything happened because of these disclosures.

[218]     Fourth, while the Plaintiffs conceded that these utterances are not determinative of whether sufficient notice was provided to assess the question of negligence, there being the establishment of a duty of care and breach of that duty, there remains the issue that we do not know if anything was done as a follow-up.  Most of the statements included the assertion that there was nothing done as a result of the disclosure, notwithstanding that several indicated Msgr. Ryan promised to follow up with the Superior.  However, there is no evidence either way.  The Plaintiffs are suggesting that the court speculate about the actions of Msgr. Ryan. 

[219]     We do know, from the testimony of E.V., and one of the written statements, that shortly after these disclosures, two of the offending Brothers, Lasik and Ford, left Mount Cashel.  Again, we do not know the circumstances of their leaving, and there was no evidence that it was related to any action by Msgr. Ryan, or just happenstance.  The difficulty is that there just is insufficient evidence to draw a conclusion.

[220]     This is the only evidence that Msgr. Ryan was told about the sexual abuse.  Of the five witnesses (four Plaintiffs and E.V.) only two reported sexual abuse to the priest during confession.  That was G.E.B. #25 (J.E.) and E.V.  The former testified that he mentioned this in confession only once.  E.V. testified that he told Msgr. Ryan three times, once in confession. 

[221]     One other, G.E.B. # 50 (R.S.), reported only harsh discipline, but did not testify about any sexual abuse.  The other two, G.E.B. # 26 (E.F.) and G.E.B. # 33 (R.H.) testified that they did not communicate any abuse, sexual or otherwise, to the priest either in confession or outside.

[222]     At least the five witnesses were cross-examined on their disclosure in the confessional and even with the deficiencies of memory and context, carry a degree of reliability.  The written statements, while carrying some evidential value, are weakened by the fact that no cross examination could take place. 

 

[223]     Even if I accept that the evidential record is sufficient to meet the Plaintiffs’ burden of proof, there are other issues which must be considered before liability may be imposed.  First, did Msgr. Ryan have a duty of care in respect of the boys based on a mandate from the Archdiocese?  Second, did he breach that duty when he became informed, through the confessional, of instances of abuse by a failure to do anything? Third, did knowledge obtained in the confessional, with the high expectation of confidentiality, amount to disclosure such as to raise a duty to intervene? The Plaintiffs would have to prove these issues on a balance of probabilities before I could even consider the issue of whether the notice was sufficient to give rise to a duty.

Duty of Care

[224]     The more fundamental question is: did Msgr. Ryan owe the residents a duty of care to intervene upon becoming aware of sexual abuse?  The Plaintiffs argue that by placing Msgr. Ryan at Mount Cashel, he was placed in a special relationship with the residents.  The Plaintiffs used the words “fiduciary relationship” to describe the relationship, however, I do not accept that this was made out.  Msgr. Ryan was assigned as chaplain only to hear confessions and say Mass.  He had no authority over the boys, nor did he have any responsibilities respecting their care.  A fiduciary relationship is a carefully defined one, and there is no indication that he had that kind of responsibilities.  This aspect was considered in the Blackwater case by the Supreme Court, where Chief Justice McLachlin noted, at paragraph 57:

57.      A fiduciary duty is a trust-like duty, involving duties of loyalty and an obligation to act in a disinterested manner that puts the recipient's interest ahead of all other interests: B. (K.L.) v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51 (S.C.C.) (CanLII), para.49.

[225]     This concept does not apply to Msgr. Ryan.  He was not placed in a position of trust, although as chaplain, he would have had some responsibility to act in a manner that was in the spiritual interest of the boys.

 

[226]     To define a duty of care, two concepts must be addressed:  proximity and foreseeability, and the existence of any mitigating circumstances.  Chief Justice Brenner, in the trial decision of Blackwater, summarized the test beginning at paragraph 68:

68.      The Supreme Court of Canada has adopted a two stage approach to identifying the existence of the type of duty set out by the House of Lords in Anns v. Merton London Borough Council, [1977] 2 W.L.R. 1024 (U.K. H.L.). In Nielsen v. Kamloops (City), 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2 (S.C.C.), at 10 W. J. particularized the test as follows:

 

(1) is there a sufficiently close relationship between the parties . . . so that, in the reasonable contemplation of the [defendant], carelessness on its part might cause damage to that person? If so,

 

(2) are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?

[227]     First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. 

[228]     This test requires the court to examine the issues of proximity and foreseeability first.  If that question is answered in the affirmative, then consideration must be given to any factors which might reduce the scope of the duty.  In this case, the second issue was not argued, and in my view is not applicable.  Accordingly, I will deal only with the issues of proximity and foreseeability.

[229]     In the Broom case, Justice Cromwell for the Supreme Court of Canada set out a list of factors to be considered in determining the question of proximity.  At paragraph 16:

16.      The question of whether there is sufficient proximity is concerned with whether the relationship between the plaintiff and defendant is sufficiently close and direct to give rise to a legal duty of care, considering such factors as physical closeness, expectations, representations, reliance and the property or other interests involved: Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129 (S.C.C.), at paras. 23-24 and 29.

[230]     Msgr. Ryan was proximate in one sense.  He was the chaplain at Mount Cashel.  He was not, however, in the same position of trust and care-giving as the Brothers.  His only contact with the boys was during religious services.  He had no responsibility for their care.  His living quarters were physically separate from the orphanage, and neither he nor the boys had access to each other’s living area. 

[231]     He was not given any authority over the boys, nor did he have any responsibility for their education, care or discipline.  He had no formal relationship with the Superior of the orphanage.  He undoubtedly collaborated with the Superior on matters of religious services but would not have had any role in any aspect of governance of the orphanage.

[232]     On the issue of expectations of the boys, they clearly saw him as someone who might have been able to help them.  It is understandable that they would have related their experiences of abuse in the confessional.  With their understanding of the confidentiality of confession, it is surprising there was not more evidence of disclosure outside the confessional, in an environment where privacy would not have been an obstacle to further reporting.

[233]     The Plaintiffs argue that Msgr. Ryan’s closeness to the Archbishop created the necessary proximity, because the boys would have seen him as someone who could address the problems they were experiencing.  However, both he and the Archbishop were outside the governance structure of the orphanage.  The Archbishop was an external authority, the highest authority in the governance of the Church in this Province, but with no role inside the walls of the orphanage.  It is not Msgr. Ryan’s closeness to the Archbishop which determines proximity, but his closeness to the boys at Mount Cashel.

[234]     It might be said that becoming aware of the sexual assaults being committed by the Christian Brothers against child would have raised a duty to do something about it, given that in his role as chaplain he would have had the ability to broach the issue with those in authority.  The Bennett case was cited as one where constructive knowledge of the abuse of Fr. Bennett was imputed to the bishop.  However, that case was quite different.  There, the duty of care was established by the fact that Bennett, the tortfeasor, was an employee of the bishop and under his control and direction.  It was the bishop who had the authority to issue sanctions against such misconduct.  Msgr. Ryan was an employee of the Archbishop, but was not the tortfeasor, and was not in any position of responsibility towards the children.

[235]     Msgr. Ryan had no duties vis à vis the care of the boys and the management of the orphanage.  As an agent of the Archdiocese, Msgr. Ryan would have had to be placed in a position of authority over the children, and perhaps the Brothers, for any knowledge to have triggered a duty of care.  In Broome, Justice Cromwell commented on the issue of proximity between the government and the Plaintiffs where a government psychiatrist was in the home on a regular basis, at paragraph 18: 

18.      … in the Court of Appeal, the appellants relied on the fact of the regular presence in the Home of Dr. Beck, a psychiatrist in the employ of the provincial Department of Health, between 1964 and 1967. According to the Agreed Statement of Facts, Dr. Beck became involved with the Home on his own initiative as a volunteer and reported to the Board of Trustees, not the Province. Although he is said to have authored a report which he provided to the Board, containing recommendations regarding the future role and operation of the Home, there is no further information in the record about its contents (Agreed Fact #5). The Court of Appeal concluded that, on these facts, Dr. Beck's involvement did not materially contribute to the appellants' attempt to establish proximity between the Province and the residents of the Home. In this Court, the appellants have not pursued any arguments relying on the facts relating to Dr. Beck. I will therefore say nothing further about them other than that I see no reason to doubt the correctness of the Court of Appeal's approach to this issue.

[236]     In that case, the psychiatrist was not involved in the running of the facility.  His presence there was solely in relation to the psychiatric issues of the residents.  This appears analogous to Msgr. Ryan, whose presence at the orphanage was limited only to providing religious services to the residents.

[237]     In the Bennett case in the Court of Appeal, Justice Marshall commented on the effect of knowledge of one of the bishop’s employees’ misconduct, and said, at paragraph 59:

59.      … Thus, in failing to deal effectively with the grave crimes committed by the priest, and permitting him to continue unchecked in parochial assignments, the corporate episcopal office was in breach of its ordinary duty owed by it to parishioners of the Diocese and others coming in contact with the priest in the ordinary course of his ministry, and by its own act becomes a party to, and a causative agent of, the damaging torts committed by the criminal.

[238]     The Plaintiffs allege from Bennett that the diocese had a duty to respond if it had actual or constructive knowledge of the abuse.  They say that knowledge, even in the absence of a duty, is sufficient to impose liability. 

[239]     The Plaintiffs also cite K.(W.) v. Pornbacher, 1997 CanLII 12565 (BC SC), [1998] 3 W.W.R. 149, 1997 CarswellBC 40 (S.C.), where knowledge of abuse by some priests was evidence of a breach of the duty respecting the Defendant priest.  Like Bennett, in Pornbacher the priest was an employee of the diocese.  There was clear proximity in the employer-employee relationship.  The bishop was responsible for the operation of the diocese, and the supervision of its priests.  It was foreseeable that failure to act on knowledge of abuse would lead to harm.

[240]     However, taking this approach misses the point that proximity is defined in this context by the connection between the defendant and the tortfeasor.  Msgr. Ryan was not a tortfeasor: it was the Brothers who committed the acts of abuse.  Whether or not he had knowledge, his role in relation to the orphanage was quite limited and was not sufficiently close and direct to satisfy the test of proximity.  The Plaintiffs have, with respect, assumed a duty, and then find a breach of that duty by imputing actual or constructive knowledge to the Archdiocese by the presence of Msgr. Ryan.  In my view, they have missed the step of finding the basis for proximity, and then foreseeability, to find a duty.  Only then can we consider whether there has been a breach.

[241]     The second part of finding a duty is whether there was foreseeability.  In the context of Mount Cashel in the 1950’s it must be considered that no allegations of sexual abuse had ever come forward.  The Supreme Court, in such circumstances, has taken diametrically opposed views on whether such misconduct would have been foreseeable.  In B.(K.L.), decided in 2001, Chief Justice McLachlin opined at paragraph 15:

15.      It is reasonably foreseeable that some people, if left in charge of children in difficult or overcrowded circumstances, will use excessive physical and verbal discipline. It is also reasonably foreseeable that some people will take advantage of the complete dependence of children in their care, and will sexually abuse them.

[242]     That case concerned sexual abuse of children in foster homes in the 1960’s.  Consider, though, that two years later, with respect to sexual abuse of children in a residential school, the Chief Justice in Blackwater decided in 2005, opined differently, at paragraphs 14-15:

14.      The trial judge concluded that the harm was not foreseeable on the evidence before him. There was no evidence that the possibility of sexual assault was actually brought to the attention of the people in charge of AIRS. The trial judge found that the children had not been very clear in reporting the abuse and the adults to whom they reported did not realize the children were talking about sexual abuse, an almost unthinkable idea at the time. Former employees at AIRS testified that they were ignorant of any systemic or widespread abuse at the school and the doctor who cared for the children there never suspected abuse. On the two occasions that a sexual abuse was brought to the supervisor's attention, the perpetrator was immediately fired.

 

15.      Nor, given the standards and awareness of the time, could it be contended that they ought to have known of the risks; as the trial judge stated, "...when the evidence is examined closely, one is drawn to the conclusion that the unspeakable acts which were perpetrated on these young children were just that: at that time they were for the most part not spoken of" (2001 decision, para. 135). By contemporary standards, the measures taken were clearly inadequate and the environment unsafe. But by the standards of the time, constructive knowledge of a foreseeable risk of sexual assault to the children was not established. As a result, the trial judge dismissed the claims of negligence against the Church and Canada.

 

[243]     To the issue of whether standards of the period concerned or today’s standards for foreseeability ought to apply the Supreme Court provides little help.  The Defendant in this case has encouraged the court to consider the era when these issues arose.  At that time, according to the evidence at trial, it was unthinkable that this kind of abuse could be going on.  However, from the perspective of today’s knowledge, we know that it not only could happen, but it did, with tragic results.

[244]     To determine foreseeability, in my view one must consider the circumstances of the times.  Foreseeability by definition is the subjective view of the observer.  Sexual abuse involving religious individuals had never come to light before.  Dr. Fitzgerald testified that the Christian Brothers during the first half of the 20th century were considered stellar educators.  Their reputation was unblemished.  The first publicly disclosed incident of sexual abuse did not come to light until the 1960’s, and that could have been considered an isolated incident at that time.

[245]     In my view, the issues of proximity and foreseeability require more evidence of both knowledge and close connection to raise a duty of care on the part of Msgr. Ryan.  He did not have the authority for management as the volunteer in the Boy Scout camp had in the case cited in Rich v. Bromley Estate, 2011 NLTD(G) 16.  He was more akin to the psychiatrist in the Broome case, who was there for the specific reason of the mental health of the residents.  Msgr. Ryan was a chaplain with the mandate to tend to the spiritual health of the residents, without any mandate or authority for operations.  In those circumstances it is difficult to see how his connection could be considered a proximate one. 

[246]     Even if proximity was evident, on the issue of foreseeability the evidence falls short.  Even the Plaintiffs, in their testimony, were of the view that no one would believe them if they disclosed because of the stellar reputation of the Brothers.

[247]     I find that on the issue of a duty of care on the part of Msgr. Ryan, the evidence and argument on behalf of the Plaintiffs falls short.  Notwithstanding that finding, I will go on to examine whether there is evidence of a breach, if I had, in fact, found there were a duty.

Breach of a Duty

[248]     The Plaintiffs submit that Msgr. Ryan was negligent in his failure to deal with the sexual abuse that was reported to him.  In Rich the court dealt with the liability of the Archdiocese arising from the tortious actions of a priest who was placed in a youth detention centre as a counsellor and chaplain.  At paragraph 62, the court considered an authority from Alberta where the Boy Scouts organization was found liable in a somewhat analogous situation:

62.      The plaintiff relies on S. (C.) (Next Friend of) v. Miller, 2002 ABQB 152 (CanLII), 2002 ABQB 152 (Alta. Q.B.) as a precedent in support of the liability founded on the first part of the second branch of the Salmond test as explained by McLachlin, J. in Bazley. In that case, Miller, who was a friend of C.S.'s family asked C.S.'s mother if he could take the boy to a Boy Scout camp. Miller was not associated formally with the camp but had had a long association with the Boy Scouts. The camp was run by a volunteer camp chief who witnessed the first incident of sexual assault by Miller against C.S., a five-year-old boy. She did nothing to stop it. . . .

 

63.      I find that that case is different than this case. While it speaks to vicarious liability being imposed on "employers" for the action (or inaction) of a volunteer, the circumstances were very different. The camp chief had been put in charge of the entire camp by the Boy Scouts. She had the authority to expel anyone from the camp. She witnessed the first assault and did nothing to intervene or take steps to prevent the second assault. The real basis for finding her actions (or inaction) wanting was on the basis of a duty to intervene. In failing to do so, she was negligent and the Boy Scouts, who put her in charge of the camp, were found to be vicariously liable for her negligence.

[249]     On this basis it is submitted that the Archdiocese should be vicariously liable for the inaction of Msgr. Ryan.  However, in the Alberta case, the imposition of vicarious liability arose not from the actions of Miller, the tortfeasor, but from the Camp Chief who had the mandate and authority to act.  In that role she witnessed at least two incidents of sexual abuse and did nothing. 

[250]     In the case of Msgr. Ryan the evidence is quite different.  He had no management mandate and no authority to intervene, other than to take the issue to the Superior.  There was no evidence that he ever witnessed abuse.  He did not have

the presence within or access to the orphanage to be monitoring the boys.  We do not have evidence that what the boys communicated was understood in those terms, and whether, in any event, the disclosures were believed.  The evidence of the Plaintiffs was that all the boys went to confession weekly.  With a resident population of some 200 boys, that means hundreds or even thousands of confessions heard during the period in question.  We have evidence of only seven disclosures of abuse generally, and five involving sexual abuse.

[251]     For breach of a duty, there must be evidence of either malfeasance or nonfeasance.  As noted above, there is no evidence that nothing was done, and perhaps some evidence that might suggest something was done.  There is evidence of a promise to speak to the Superior about the issue.  There is no evidence that he did, but also no evidence to the contrary.  But we have evidence that the offending Brothers left at about that time.  We do not know if there is a connection between Msgr. Ryan’s promise and their departure.  The evidence just is not before the court.

[252]     As a consequence, with very weak evidence on either the knowledge to be imputed to Msgr. Ryan, and whether he acted on that knowledge, the Plaintiffs have not met their burden of proof on this issue.  Even if I accept that the knowledge was communicated there are other issues, in particular the existence of a duty of care, already dealt with, and finally the confidentiality of the confessional.

Confidentiality of the Confessional

[253]     The extent of the confidentiality associated with the confessional was recognized by all witnesses.  Each of them knew that anything said would be subject to a high degree of privacy.  They all felt, however, that with knowledge, Msgr. Ryan could have found a way to communicate with the Superior of the orphanage, and barring action, report to the Archbishop.

[254]     It is instructive to examine what the Canon Law says about this issue.  Again, while it is not determinative of the civil law implications of having knowledge received through the confessional, it does inform the kind of restrictions placed on a priest.  It also identifies the basis for the high expectation of privacy on the part of those confessing.

[255]     Both Fr. Doyle and Fr. Morrisey opined on the obligation and duty of a priest on hearing disclosures in the confessional.  Fr. Doyle said in his report that “. . . Msgr. Ryan was forbidden to disclose the identity of the Plaintiff or the contents of his confession for any reason.”  In his testimony he described the seal of the confession as protection for the penitent.  He said that nothing received in confession can be revealed directly or indirectly.  He might intimate something, but he said, “this is dangerous for a priest concerning the seal.”  Any priest who violates the seal is automatically excommunicated. 

[256]     Fr. Morrisey’s view was much the same.  He said that if Msgr. Ryan had received any such disclosure, “… he would not have been allowed to report this matter to the Archbishop. …”  He did say that the penitent could have been counselled to speak to him outside the confessional.  In that instance the priest could have reported the concerns.  In his testimony, Fr. Morrisey cited Canon 890 regarding confession:

1.      Any use to the detriment of the penitent of knowledge acquired by confession is entirely prohibited to the confessor, even excluding all danger of revelation.

 

2.      Both Superiors at the time and confessors who become Superiors after they resign, who have notice concerning sins from confession, cannot use this [knowledge] in any way for external governance.

[257]     He explained that the words “to the detriment of the penitent” would still not allow the priest to disclose, as detriment extended to any penitent whose confidence in the seal of the confessional might be diminished by such disclosure.

[258]     Fr. Doyle also said that the boys understood the nature of confession.  He said they were trained to know that a disclosure made within the confessional is absolutely private, but any revelation outside was not protected. 

[259]     I am satisfied that under Canon Law, there was no ability in the priest to disclose any information received in the confessional.  However, that does not determine the issue for the civil law. 

[260]     The importance of confidentiality in these circumstances is recognized in the civil law.  In the Evidence Act, R.S.N.L. 1990, c. E-16, section 8 grants a privilege to such communications:

8.         A member of the clergy or a priest shall not be compellable to give evidence as to a confession made to him or her in his or her professional capacity.

[261]     However, it is interesting that the Evidence Act does not protect the communication, only that a member of the clergy is not a compellable witness respecting a confession.  I was not provided with authority that the civil law respects the seal of the confessional in the same manner as Canon Law.  I accept that such disclosures may give rise to an obligation to act in a civil law context. It may be that the priest for whom a duty of care was established would have to find a way to report which did not violate the seal of the confession.  Fr. Morrisey intimated that this might be possible, by inviting the penitent to disclose outside the confessional.  Fr. Doyle testified that if the priest did not believe the disclosure, he could dismiss it.

[262]     I am uncertain whether the protection accorded the confessional in Canon Law can operate as a shield against civil law responsibility in these circumstances.  However, I accept the opinion of both experts that there may have been a way around this prohibition, and, where the disclosure concerned such a grave matter. 

Summary on Vicarious Liability re Msgr. Ryan

[263]     Both the evidence and the law fall short of creating the circumstances where Msgr. Ryan could have been considered negligent for failing to act on knowledge, and hence implicating the Archdiocese vicariously. 

[264]     The law requires that a duty of care be established, and then a breach of that duty.  In order find a duty, the court must address the issues of proximity and foreseeability.  Proximity requires a close connection between the individual who is allegedly negligent and those against whom the negligence was directed.  In this case, the role of Msgr. Ryan did not meet the requirements of proximity. 

[265]     On the question of foreseeability, the Supreme Court of Canada has provided conflicting statements.  On the one hand, foreseeability may be assessed against the context of the relevant period.  On the other, the question should be addressed based on current-day perceptions.  Notwithstanding the ambiguous direction from the high court, I am inclined to consider that at the time in question, the misconduct with which we are concerned would have been unthinkable.  Therefore, any disclosure made to the priest would have been assessed as to its credibility on the basis of what he knew at the time.  At that time, in my view, it would not have been foreseeable that these acts could have taken place.

[266]     In respect of the evidence, there were a number of weaknesses undermining the Plaintiffs submission of liability on the part of Msgr. Ryan.   Assuming the existence of a duty of care, in order to prove on a balance of probabilities that there was a breach of that duty the Plaintiffs had the burden to prove:

1.     That the priest had been informed of the abuse by disclosures in the confessional;

 

2.     That the priest would have understood what was being communicated, and believed that the disclosures were credible;

 

3.     That he could have addressed the disclosures, notwithstanding the seal of the confessional;

 

4.     That the priest, having understood the disclosures, did nothing about them.

[267]     On the first issue, I do not doubt that the disclosures were made. I found the testimony and the written statements believable and accept that Msgr. Ryan was told.

[268]     On the second, I am left with some doubt about whether the priest received the messages as told by the boys.  The testimony and statements provided indicate only seven disclosures out of potentially hundreds of confessions heard by the priest during the relevant period.  Those disclosures may have either not been believed or may have been misunderstood by the confessor.  Several of the witnesses, including the Plaintiffs, confirmed in their testimony that they were not even certain how to describe what had happened to them.  All of them also indicated that it was unlikely they would be believed.  The question of believing their disclosures must also be considered in the context of the times.  The reputation of the Brothers was such that no one would have considered this kind of abuse was possible.  Consequently, while I believe their testimony, I am not persuaded that the priest would have fully understood or believed what had been said.

[269]     The seal of the confessional was an important consideration.  The boys all understood that anything said in confession was absolutely confidential and private.  They knew the priest could not speak about the disclosures to anyone, including the Archbishop or the Superior.  On the other hand, the seal was a religious belief and does not necessarily bind the civil law.  The evidence of both Canon Law experts was to the effect that a priest could have found a way to bring the issue outside the confines of the confessional.  In addition, we are dealing with children at the time, who, even if aware of the confidential nature of confession, could not be bound therefore by any implicit acceptance of privacy.  I would not accept the seal of the confessional as a defence.

[270]     Finally, it is not clear what happened as a result of these disclosures.  While the witnesses said it appeared nothing was done in response to their disclosures, there was also evidence that shortly following the disclosure of one of them, the offending Brothers were removed from the orphanage.  This does not prove that Msgr. Ryan was responsible for this action.  But there was also no evidence whatsoever that nothing was done.  It would be speculative to decide either way.  If a breach of a duty was dependent on evidence of failure to report or remedy the situation, then there is no evidence of such a breach.

[271]     Accordingly, I find no tortious conduct on the part of Msgr. Ryan, and hence no vicarious liability on the part of the Archdiocese.

Direct Liability of the Archdiocese for Negligence

[272]     The third allegation of liability on the part of the Archdiocese is that it is directly liable in negligence for its failure to act in the face of continued abuses of which it had knowledge.  I have already considered whether notice in the confessional to Msgr. Ryan amounted to notice to the Archdiocese.  In my view, the evidence was insufficient to find that it amounted to notice, or that nothing was done as a result.

[273]     The Plaintiffs have raised one further incident which has been recorded in a document submitted into evidence dating from January 1954.  They argue that this incident constitutes notice of sexual abuse taking place at Mount Cashel.  This incident was recorded in a document by Fr. Dermot O’Keefe, to whom I have referred earlier.  He was approached by a former civilian employee at Mount Cashel who accused another civilian employee of abusing one of the boys.  I will set out the contents of the note. 

[274]     The document entered into evidence consisted of three pages.  The first contained a title and appeared to be on the Archbishop’s letterhead:

Chancery Office

The Palace

St. John’s, Newfoundland

 

Accusation of immorality against an employee at Mount Cashel.

January 14, 1954

[275]     The second page contained the account of the visit by the former civilian employee.  I will refer to the individuals referenced only by their initials:

January 14, 1954

 

[L.G.], came to see me.  He was cook at Mount Cashel, but was fired three weeks ago on a charge of stealing (eggs).  He says he is innocent.

 

 

He came to accuse an employee at Mt. Cashel of homosexuality, [F.C.].

 

[L.G.] brought a boy to the RCMP’s six days ago, and the boy made a statement that [F.C.] had had relations with him.  [L.G.] says that when the Brothers heard of this, they locked the boy up.

 

[L.G.] says he told the Brothers about the danger long ago, but they would do nothing, saying there was no proof (Bro. T.I. Murphy & Bro. Carroll).

I did not make any comment, except to say that if he felt it his duty to report on this, his conscience was now relieved.

 

I told Msgr. Murphy, Adm. Of the Archdiocese on January 15th.

 

(Sgd) D.L. O’Keefe

[276]     That note was followed by two more on page three of the document. 

Jan. 23/54

 

Msgr. Murphy sent for Bro. Carroll (Father E. Lawlor had told Msgr. That RCMP Pat Noonan was worried about case, felt he should act).

 

Bro. Carroll denied charge against [F.C.]; said malicious lies by [L.G.].

 

[F.C.] does not live at Orphanage, comes in every evening at 5 p.m. to do electrical work – free of charge.  Goes to Holy Communion weekly.

 

Boy with whom he was supposed to have sinned has made sworn statement that it is not true. 

 

Bro. Carroll promised to see Noonan.

 

Jan 26/54

 

Bro Carroll phoned Dr. O’Keefe, asking him to tell Msgr. Murphy that after the interview with Noonan Bro Carroll had decided to tell [F.C.] to stay away from Orphanage.  [F.C.] was such a low character that Bro Carroll was afraid of the harm he might to the Orphanage.  He works with an electrical Company, and they may send him in sometimes.

 

(sgd) D. L. O’Keefe

[277]     As earlier noted, Fr. O’Keefe testified at the Hughes Inquiry into allegations of abuse at Mount Cashel.  In the video recording, he confirmed that the document was an accurate reflection of what he had been told at the time.  He also testified that the note reflected the impression at the time that the matter had been properly handled, and was now concluded.

[278]     There was much discussion about this document and what it represented.  The reporting of the incident to the office of the Archbishop engaged both principles of civil law and the Canon Law.  Under civil law, notice of abuse could, in some circumstances raise a duty to respond.  Under the Canon Law the same considerations applied.  I will deal with the civil law issues below. 

Canon Law

[279]     Several of the witnesses for the Defendant addressed the obligations which arose in Canon Law by virtue of this disclosure.  Both Canon Law experts opined on their interpretation of the proper course of action for the Archbishop upon receiving this information. 

[280]     Fr. Thomas Doyle commented in his report of 2010 that upon hearing of the allegation, the Archbishop was obligated by Canon Law to conduct an investigation.  Fr. Francis Morrisey disagreed with this interpretation and said the relevant provisions of the Canons prescribed only an inquiry.  He felt the account in Fr. O’Keefe’s note met that requirement.

[281]     When presented with Fr. Morrisey’s view in cross-examination, Fr. Doyle agreed that the Archbishop’s obligation in Canon Law was to inquire into the matter.  In this case, since the electrician was fired from Mount Cashel, he said that should have ended the matter.  In an extreme case, the Archbishop had the authority to prosecute a layperson under Canon Law, but he testified he had never heard of that happening.  In the end, Fr. Doyle agreed that the appropriate inquiry was made, and it was determined that the Superior had taken action.  That was the end of it.

[282]     That was also Dr. Fitzgerald’s understanding of the requirement, based on his research of the history of these events.  He said the information provided indicated that, on inquiry, it was determined by Msgr. Murphy, that the Brothers had placed it in the hands of the law enforcement officials.  In his view, it was consistent with the relationship between the Archbishop and the Brothers.  They were independent from the Archdiocese, and the only approach for the Archbishop was to turn the issue back to the Brothers. 

[283]     Fr. Puddester, the current Vicar General of the Archdiocese, testified as to his understanding of the appropriate response to the events in the O’Keefe memo.  He said, on reading the memo that it seemed the officials in the Archbishop’s office had some cause for concern, given the seriousness of the allegation.  But given the Brothers autonomy as an order of Pontifical Rite, he was uncertain how far he could have intervened.

[284]     The testimony of Archbishop Currie was much to the same effect that the Brothers controlled their own affairs, and the Archbishop’s office took the appropriate action by referring the matter back to the Superior. He felt it was handled appropriately, because the police were already involved.

[285]     Finally, in his recorded testimony before the Hughes Commission, the comments of Fr. O’Keefe, who wrote the memo, were consistent.  He wondered if the Archbishop could have summoned the Superior of Mount Cashel.  He said the authority of the Archbishop over the Brothers was very limited, in particular, with reference to an order of Pontifical Rite.

[286]     I conclude from this testimony that upon receipt of the information contained in the memo, the Archbishop had the obligation under Canon Law to make inquiries to ensure the issue was being dealt with by the Superior.  Upon satisfying himself that it was, the matter would be ended.

Civil Law

[287]     We have already addressed the requirements raising a duty of care under the civil law.  They involve concepts of proximity and foreseeability.  The duty owed by the Archbishop to the residents of Mount Cashel is established by determining the closeness of the relationship.  We have already reviewed this issue in the context of Msgr. Ryan’s duty to Mount Cashel.  His duty would have flowed from the authority and obligation of the Archbishop.

[288]     The relationship is governed by the obligations and the level of control.  The Archbishop did not operate the orphanage, nor did he manage it in any way.  There was no involvement in day to day operations, nor did he have a role in assigning personnel, whether lay individuals, such as the electrician, or the individual Brothers.  

[289]     Admissions of boys to the institution were in accordance with policy set by the Brothers.  Even though some boys entered with the assistance of a priest, that did not indicate any control over the admissions policies, or any other aspect of operations.  It was clear that the boys saw the Brothers as parental figures, not the priests or Archbishop. 

[290]     The authorities reviewed above suggest that in the absence of this kind of directing role, no duty of care arises.  We might accept an obligation similar to that raised in Canon Law to make inquiries if some event comes to the attention of the Archbishop, but the standard affixed to the duty would be very low.  In the case of the Canon Law, as long as the Archbishop was assured that the matter was dealt with, nothing further was required.  I am satisfied that on this one incident where the office of the Archbishop became aware of one case of abuse, it was handled appropriately. 

[291]     The Plaintiffs suggested that on becoming aware of this one incident, which did not involve a brother, but a civilian employee, the Archdiocese was put on notice of abuse taking place at the orphanage.  They argue that the several disclosures to Msgr. Ryan in the confessional, together with the O’Keefe memo, raised an awareness of repeated abuse.  These arguments avoid the proper analysis of the requirements of proximity and foreseeability as the basis for tortious liability.  Mere

knowledge, even if it can be established, is insufficient to ground liability.  Knowledge as a basis for liability must come in the context of a duty, and in this case, that duty has not been made out.

[292]     In any event, the evidence underlying the submission is inherently weak.  There is some evidence of several disclosures in the confessional to Msgr. Ryan, out of many hundreds of confessions heard by the priest over the relevant time.  There is also no evidence that nothing was done, and some, albeit weak, evidence that something may have been done by the priest, in that the offending Brothers were removed from the orphanage shortly after the disclosure.  I accept that contemporaneous connection may not prove a causal connection.  However, it would only be speculation to say Msgr. Ryan did nothing.

[293]     As for the one disclosure during this period directly to the office of the Archbishop, there was appropriate follow-up in accordance with Canon Law, and satisfying any duty that existed in civil law.  The evidence submitted indicated that the Archbishop would have understood that the allegation was appropriately dealt with by the Superior referring the matter to the police and firing the electrician.  There was nothing more for the Archbishop to do.

[294]     In hindsight, it may be evident that the disclosures indicated a more serious problem at the orphanage.  But at the time, with the evidence available to the Archbishop and his appointed chaplain at the orphanage, the responses of which we have any evidence were appropriate.

[295]     Accordingly, there is no basis for finding that the Archbishop was negligent, and hence there is no direct negligence on the part of the Archdiocese.

Conclusion on Liability

[296]     The Plaintiffs raised three grounds on which they argued liability should lie against the Archdiocese.  The first, vicarious liability for the acts of the abusing Brothers, fails on the basis of lack of evidence of control and direction by the Archbishop in the affairs of the orphanage.  The Archdiocese was not the employer of the Brothers, or any of the civilian employees.  It did not set the policies for the day to day life of the orphanage, admission of boys, direction of the Brothers and civilian employees, and curriculum and teaching.  That was all under the control of the Brothers.  Therefore, the Archdiocese cannot be found liable for the actions of the Brothers.

[297]     The second, vicarious liability for the failure of Msgr. Ryan to intervene fails on different grounds.  First, while the priest was an employee of the Archdiocese, he had no mandate or authority in the operations of the orphanage, and therefore no duty of care towards the residents.  His role was to tend to spiritual and religious needs of the boys, conducting services, hearing confessions.  His quarters were separate from the rest of the orphanage, and he did not have access to either the boys or the Brothers. 

[298]     More importantly, on the key issue of his knowledge of abuse, the evidence was very weak.  While I believe the witnesses when they say they disclosed abuse while in confession, I also recognize that Msgr. Ryan heard hundreds, perhaps thousands of confessions.  We have evidence only of seven disclosures of physical and sexual abuse, and only five of the seven involved sexual abuse.

[299]     Even if I accept this evidence as sufficient to raise a duty to intervene, we have no evidence whether the priest followed up with the Superior of the orphanage.  One witness, E.V., said that shortly after he disclosed, the offending Brothers left the orphanage.  This could mean nothing, or it could mean that the priest did, in fact, intervene.  We just do not know, and it would be speculation to conclude one way or the other.  Speculation is not sufficient to satisfy the legal burden imposed on the Plaintiffs, and therefore, in the absence of any malfeasance, or nonfeasance, there is nothing for which the Archdiocese can be vicariously liable.

[300]     Finally, the third ground involved an allegation that the Archdiocese was directly negligent based on its direct knowledge of abuse.  Apart from the disclosures in the confessional, with which we have already dealt, the only source of knowledge

was the incident recorded in the memo of Fr. O’Keefe in January 1954.  The expert witnesses for both the Plaintiffs and the Defendant agreed that having satisfied himself that the matter had been handled by the Superior, the Archbishop discharged any responsibility under the Canon Law.  As far as the civil law is concerned, I believe the same considerations apply.  Even if proximity and foreseeability had been established, by following up with the Superior, and being satisfied that the electrician had been fired and the police were involved, any duty had been discharged.

[301]     The Archdiocese is therefore not liable for the abuse suffered by the Plaintiffs.

Damages

[302]     Notwithstanding my finding that there is no liability, I have been asked to assess damages on behalf of each of the Plaintiffs.  There are two issues related to the Limitations Act which must be addressed.  Then a review of the law related to causation in damages, and then an assessment of the damages of each of the four Plaintiffs. 

The Limitations Act

[303]     This legislation requires an examination of the distinction between physical abuse and sexual abuse.  Two issues arise here.  All the Plaintiffs testified to being victims of physical abuse.  The Defendant admits that all Plaintiffs suffered physical abuse at the hands of the Christian Brothers.  However, they say no damages are recoverable for physical abuse because of the operation of the Limitations Act.

[304]     Three of the Plaintiffs gave evidence which clearly identified sexual abuse as part of their experience.  The Defendant accepts that these three were victims of childhood sexual abuse and admit that it is appropriate to assess damages.  The Defendant does not accept that the fourth Plaintiff, G.E.B. # 50 (R.S.), was a victim of sexual abuse.  As a consequence, it says there should be no assessment of damages in respect of R.S.

[305]     The Limitations Act provides limitations on bringing actions for personal injuries or torts committed against the person (sections 5 and 6).  However, section 8 creates an exception for sexual torts.  It reads in part:

(2)  Notwithstanding sections 5, 6, 7, 9 and 22, where misconduct of a sexual nature has been committed against a person and that person was

 

(a)   under the care or authority of;

 

(b)   financially, emotionally, physically or other­wise dependant upon; or

 

(c) a beneficiary of a fiduciary relationship with another person, organization or agency, there shall be no limitation period and an action arising from that sexual misconduct may be brought at any time.

[306]     I will consider the meaning of “misconduct of a sexual nature” below.  In respect of the damages applicable in this case, the Defendant has argued that an award cannot be made for harm arising from the physical abuse suffered by the Plaintiffs.  That will require an examination of the general culture of abuse at Mount Cashel and contrast it with the harm caused the Plaintiffs by the sexual abuse which they suffered.  I agree with this submission and will examine the evidence for issues of causation related to the physical and sexual abuse suffered.  Since physical abuse is not actionable under the Limitations Act, damages can only be awarded for sexual abuse.  This will require a consideration of the relative importance of each kind of abuse in the lives of the Plaintiff since their residency at Mount Cashel.

[307]     One of the Plaintiffs, G.E.B. # 50 (R.S.), gave evidence of the climate of abuse at Mount Cashel.  He testified generally as to the harsh discipline at the orphanage, and, as noted above, disclosed his concerns to Msgr. Ryan in the confessional.

[308]     There is one incident recounted in his testimony which the Defendant disagrees amounted to sexual abuse.   R.S. testified that this incident took place in

the shower.  The boys would normally shower by class.  On one occasion, he was late returning from a church service and the other boys had already showered.  The shower was a large room where the boys would shower communally. He knew from experience that there would be no hot water for his shower, but Brother Lasik insisted that he have a cold shower.  His testimony indicated that Lasik stood at the shower entrance to make sure he had the shower.  At one point, Lasik used a strap on his buttocks numerous times while he was naked in the shower.  R.S. said this incident stood out in his memory because of the humiliation he felt.  He was nude and wet, and he said the event affected his dignity, and the memory has stayed with him even after all these years.

[309]     R.S. elaborated on his event to one of the experts called by the Plaintiff.  Dr. Alan Goldstein is a Certified Forensic Psychologist from New York.  He interviewed R.S. on two occasions and submitted reports on October 16, 2009 and March 20, 2016.  In his testimony, Dr. Goldstein said that R.S. told him in respect of the shower incident that “I was naked, totally embarrassed.”

[310]     He testified that during the first interview, R.S. said in respect of Brother Lasik watching him take a shower, “I could visualize him behind me, staring at me.  I’m naked and he’s getting his jollies out of it, especially when he’s hitting me with a belt.”

[311]     Dr. Goldstein summarized the reaction of R.S. to this incident in his 2009 report at page 30:

Although [R.S.] denied overt, obvious sexual abuse at the hands of Brother Lasik, he reported that even though he was not familiar with the term “pedophile” as a young boy, he was aware of the sexual component of some of this Brother’s abuse: “I knew it was sex then.”  . . . . It is my opinion that although he was not overtly sexually abused, some of the beatings that he experienced had a sexual element to them, a fact not lost on [R.S.] even when he was a young adolescent.

 

[312]     Dr. Peter C. Badgio, a Clinical Psychologist from Pennsylvania, was called by the Defendant.  He interviewed R.S. on one occasion, and in his report commented on the findings of Dr. Goldstein.  At page 3 of his 2011 report he said:

Dr. Goldstein notes that [R.S.] reported that he was never sexually abused.  Dr. Goldstein states, however, that [R.S.] “acknowledged” that when Brother Lasik physically abused him he “recognized the sexual nature of this act.”  Dr. Goldstein’s analysis assumes that when Brother Lasik hit the young [R.S.] while he was unclothed, the act was sexual for Brother Lasik.  This assumption of course requires an opinion regarding Brother Lasik’s state of mind at the time. . . .  What is important in assessing [R.S.], however, is not Brother Lasik’s state of mind, but the fact that [R.S.] by his own description did not experience the incidents as sexual.

[313]     And again, at page 7 of the same report, Dr. Badgio commented further on the shower incident:

Asked whether he felt there was anything of a sexual nature involved in the incident in which he was beaten in the shower by Brother Lasik, [R.S.] responded that he was never sexually abused.  He speculated that given the fact that he was naked, perhaps Brother Lasik had something in his mind, but [R.S.] did not experience it as sexual. 

[314]     I will assess below whether, objectively, I would view the shower incident as “misconduct of a sexual nature” as set out in the Limitations Act.  In the meantime, there was one other incident, which did not come out in his testimony, but was related by R.S. to Dr. Goldstein and set out at page 17 of his 2009 report.  The young R.S. had returned late one evening, having visited another school with two friends from Mount Cashel.  When they entered the dorm and got into bet, they continued talking.  Dr. Goldstein related the story as told to him by R.S.:

“That was a no-no.”  He reported that Brother Lasik walked into the room.  “I remember distinctly . . . I [thought I had] missed this one because he had slapped a couple of guys with two, three or four slaps.  The light was off and then Brother Lasik turned . . . and said, ‘I missed you.’  I got double what they got.  I had to bend over and take my pajamas down and I was hit with a strap on the buttocks.  I was naked.  Why this?  Every time, why did I have to take my pants down?  I knew it was sex.  I felt it was sex then.”

[315]     This last comment was not part of the testimony of R.S. under oath, and therefore must be treated cautiously as being hearsay.  It is useful as background for some of the comments of the expert psychologist, but in a limited sense since it was not sworn, nor subject to cross examination.

[316]     The Plaintiffs argued that these events were clearly of a sexual nature even though R.S. did not think it was sexual.  He did characterize it in terms that could indicate sexualized conduct, even if he did not use the word “sexual”.  They argued that elements of “sexual sadism” were present, and cited criteria in the Diagnostic and Statistical Manual of Psychiatric Disorders, 5th Edition (DSM-5) published by the American Psychiatric Association.  However, in my view, the focus on sexual sadism was overstated. 

[317]     It is not necessary to demonstrate that Brother Lasik met the psychiatric definition of “sadism”.  If an objective observer could conclude the conduct had sexual overtones, then I would find that sufficient, if the victim felt that as well.  R.S. did not say directly it was sexual, but he did focus in his testimony on the fact that he was naked, that the beating involved his buttocks, an area of the body often considered sexual.  Dr. William Foote, a psychologist called by the Plaintiffs to give expert opinion evidence, said in his report of March 29, 2001 that the extent to which physical abuse focused “upon traditionally sexual parts of the body such as genitals, buttocks or nipples, would point to sexual intent.”

[318]     I was presented with one authority on this issue, Arishenkoff v. British Columbia, 2002 BCSC 488 (CanLII).  That case was an action arising from the removal of children in the 1950’s from their homes and placing them in a residential school.  A similar section of the British Columbia Limitation Act, S.B.C. 2012, c. 13 was considered, and the question of whether boys showering in common, with the associated discipline and loss of privacy, constituted “misconduct of a sexual nature”.  The issue was decided on its own facts, but the analysis is helpful.  In that case, the children were from families which were members of a religious sect which often used public nudity as a form of protest.  In the action, the now adults complained of embarrassment from the loss of privacy and the enforced nudity in the communal showers.  The Plaintiffs asserted that the misconduct of a sexual nature arose from the lack of privacy and the taunting by other students.

[319]     In dismissing the action as being based on conduct which was statute barred, Justice Kirkpatrick reviewed several authorities.  She first referred to R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, 1987 CarswellNB 25 where the Supreme Court of Canada considered the meaning of “misconduct of a sexual nature” in the context of a criminal charge of sexual assault.  Justice MacIntyre said, at paragraph 11:

11.      The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?": Taylor, supra, per Laycraft C.J.A., at p. 269. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force, will be relevant. . . . If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

[320]     This emphasizes that the inquiry ought to be an objective one, not considered solely from the perspective of the victim or the perpetrator.  Justice Kirkpatrick went on to cite the trial decision in the Blackwater case, where Chief Justice Brenner said, at paragraph 262:

262.     In my view the phrase "misconduct of a sexual nature" is not to be interpreted narrowly. It includes all matters that are ancillary and reasonably related to the tort of sexual assault, such as a physical assault that occurs as part of a sexual assault.

[321]     Justice Kirkpatrick summarized an approach to determining whether conduct constituted “misconduct of a sexual nature”, at paragraph 67:

67.      Taking the ordinary meaning of the words and considering them in the context of the legislation as a whole and the remarks recorded at the time the amendments were introduced into law, as well as decisions which have shaped the definition of comparable phrases, I conclude that s. 3(4)(k) applies in circumstances where:

 

a)      the victim of the sexual misconduct was a child when the misconduct occurred;

b)      the misconduct constituted a real affront to the sexual integrity and dignity of the victim;

c)      the misconduct caused serious trauma or injury to the victim; and

d)      the misconduct is sufficiently egregious so as to demand that the perpetrator be brought to justice so that the victim may confront the abuser.

 

68.      Misconduct of a sexual nature is behaviour that falls outside of accepted societal norms. It is conduct that offends the sensibilities of society because it interferes with the sexual integrity of a vulnerable group in society, children, who are incapable of protecting themselves. The conduct may but is not required to be criminal behaviour.

[322]     She went on to find that the issue in Arishenkoff was not about sexual abuse but about loss of privacy, and by that measure, the action was statute barred. 

[323]     The Defendant has argued that while R.S. fit the first criteria set out in Arishenkoff, the others were not met.  It was submitted there was no real affront to sexual integrity, there was no evidence of serious trauma and the conduct was within the bounds of corporal punishment based on the standards of the day.

[324]     I take a different view in this case.  I accept that the analysis of Justice Kirkpatrick is useful in this case.  Applying the four criteria she set out I have no difficulty in finding that the first two are present in the circumstances set out by R.S. in his testimony.  He was certainly a child, and to an objective observer, the viewing of him in the shower while naked, and then striking with a strap the buttocks area of his body could easily be viewed as conduct of a sexual nature.  As for serious trauma, there was none immediately evident, but the evidence on damages indicates that R.S. still has uncomfortable memories more than 60 years after the incident.  This incident is certainly not as serious as some of the others we have heard in this trial.  But it is no less of a sexual nature because it was less traumatic. 

[325]     The final factor, whether it is conduct so egregious to require that the perpetrator be brought to justice, I note that R.S. felt humiliated and embarrassed by

what happened.  He testified that he thought it was inappropriate in the context of life at Mount Cashel.  One must recall his testimony that the discipline was considered by him to be quite harsh.  Even against that backdrop of very strict discipline, he still felt the shower incident inappropriate.  This, notwithstanding that at his age at the time he was unaware of even the concept of paedophilia. 

[326]     I must also consider the general environment which would colour the perception of a boy who was on the receiving end of this abusive behaviour.  All the witnesses testified as to the pervasiveness of sexual abuse by some of the Brothers.  Brother Lasik was mentioned frequently during testimony as being not only physically abusive, but also sexually abusive in a variety of situations around the orphanage.  Most instances of testimony about sexual abuse involved several Brothers, including Brother Lasik, coming to the dorms after lights-out and approaching some of the boys in their beds.

[327]     Considering all the circumstances, it is apparent to me that an objective observer watching the shower incident involving Brother Lasik and R.S., with the knowledge possessed by the boys of the other conduct, such as the visits to the dorms, would conclude that it was sexualized abuse.  Accordingly, I find that this incident constitutes “misconduct of a sexual nature” so as to bring it outside the statutory limit on commencing an action.

[328]     Having found that the misconduct is categorized as of a sexual nature, I must also note that that it was of a very minor nature, when compared with some of the other incidents which were described during the trial.  That will be considered below in the discussion on damages.

Causation

[329]     Causation in law requires the Plaintiff to prove that the injury arose from the actionable conduct of the defendant.  In this case, two issues arise that could affect causation.  The first is that for all of the Plaintiffs, they came to Mount Cashel with a life already compromised by conditions at home or parental loss, or both.  The second is that they can recover only for the effects of sexual abuse, since physical abuse is statute barred.

[330]     The concept has often been stated as the “but for” test.  This was described in Hanke v. Resurfice Corp., 2007 SCC 7 (CanLII), as Chief Justice McLachlin said at paragraph 23:

23.      The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present.  It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone.

[331]     The Defendant argues that the factors unconnected to the sexual abuse include first, the fact that much of the evidence is of physical abuse which is not actionable in this proceeding.  In assessing damages, I must find that “but for” the sexual abuse, the other circumstances of the Plaintiffs’ lives made no meaningful contribution to the injury they suffered.  Those other circumstances include the physical abuse, the situation of each Plaintiff prior to their admission to Mount Cashel, and the circumstances which affected them subsequent to their departure.

[332]     In Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, 1996 CarswellBC 2295 Justice Major, speaking for the Supreme Court of Canada, said at paragraph 32:

32.      The essential purpose and most basic principle of tort law is that the plaintiff must be placed in the position he or she would have been in absent the defendant's negligence (the "original position"). However, the plaintiff is not to be placed in a position better than his or her original one. It is therefore necessary not only to determine the plaintiff's position after the tort but also to assess what the "original position" would have been. It is the difference between these positions, the "original position" and the "injured position", which is the plaintiff's loss.

[333]     This means that I must assess the role of sexual abuse in the loss suffered by the Plaintiffs when compared with their original position on admission to Mount Cashel.  I will have to consider that their original position includes parental loss and

perhaps a dysfunctional family life.  I will have to consider the impact of the sexual abuse on their subsequent life separated from the physical abuse about which they testified.  The difficulty arises when it is near impossible to separate the consequences of various torts committed against the Plaintiffs.  In B.(M.) v. 2014052 Ontario Ltd., 2012 ONCA 135 (CanLII) Justice Rouleau for the Ontario Court of Appeal discussed the material contribution test, at paragraph 27:

27.      In rare cases, causation may also be proven on the basis of the material contribution test. However, the test is only available where two stringent preconditions are met: (1) it must be "impossible" to prove causation using the "but for" test due to factors beyond the plaintiff's control; and (2) the plaintiff's injury must be within the ambit of risk created by the defendant's breach: Hanke, at para. 25. If, and only if, these two conditions are met, causation may be established by demonstrating that the defendant's conduct was a material contributing cause of the plaintiff's injury, that is, causation may be established on the basis of the material contribution test.

[334]     If there is a measurable risk that the Plaintiffs’ circumstances would have affected him in future regardless of the tortious conduct, the defendant will only be liable for the effect of the actionable sexual abuse on the Plaintiffs. 

[335]     This concept was discussed in a practical way in the trial decision in the Blackwater case.  In that case, Chief Justice Brenner concluded that one of the Plaintiffs was seriously impacted by the physical violence at the residential school, quite apart from the sexual abuse.  He said, at paragraph 522:

522.     Quite apart from his violent behaviour with other children, Mr. Barney's early years at AIRS were marked by violent physical attacks by supervisors and by being forced to run the gauntlet. He was tormented by the fact that he could not understand the reason he was being punished. In the year before he was sexually assaulted, on the first occasion he was made to run the gauntlet, he developed physical symptoms - stiffness, tightness, diarrhea - that were to return during the rest of his life whenever he was put in a stressful situation. The fact that Mr. Barney attempted to commit suicide after his first exposure to the gauntlet suggests the extent of his psychological difficulties well before the sexual assaults by Plint were ever committed.

 

523.     Mr. Barney turned to alcohol and marijuana upon entering high school. Peer pressure was instrumental to his use of these substances: "I always felt obliged to

smoke [a joint] with them". He drank with his friends, "as long as we could afford it, we were together, we drank". As his consumption increased, his interest in school waned. Mr. Barney left school in Grade 11.

 

524.     These circumstances would likely have been present in Mr. Barney's life even if Plint had not sexually abused him.

[336]     On appeal to the Supreme Court of Canada, Chief Justice McLachlin wrote at paragraph 74:

74.      The calculation of damages for sexual assault to Mr. Barney is complicated by two other sources of trauma:  (1) trauma suffered in his home before he came to AIRS; and (2) trauma for non-sexual abuse and deprivation at AIRS that was statute barred.  In reality, all these sources of trauma fused with subsequent experiences to create the problems that have beset Mr. Barney all his life.  Untangling the different sources of damage and loss may be nigh impossible.  Yet the law requires that it be done, since at law a plaintiff is entitled only to be compensated for loss caused by the actionable wrong.  It is the “essential purpose and most basic principle of tort law” that the plaintiff be placed in the position he or she would have been in had the tort not been committed: Athey v. Leonati 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para 32.

[337]     She went on to provide direction for assessing the causation issues arising from the loss, at paragraph 78:

78.      It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether "but for" the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant's act is a cause of the plaintiff's damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway

[338]     These authorities underlie the defendant’s position that while it admits sexual abuse occurred in three of the four Plaintiffs, there were other circumstances, multiple factors, which adversely affected their outcomes. 

[339]     The Plaintiffs do not appear to seriously dispute this approach.  They accept that any damages awarded should only compensate for the tortious acts for which the Defendant is liable.  They raise as an important consideration the distinction between the so-called “thin skull” rule and the “crumbling skull” rule.  Chief Justice McLachlin discusses these concepts at paragraph 79 of Blackwater:

79.      At the same time, the defendant takes his victim as he finds him — the thin skull rule. Here the victim suffered trauma before coming to AIRS. The question then becomes: what was the effect of the sexual assault on him, in his already damaged condition? The damages are damages caused by the sexual assaults, not the prior condition. However, it is necessary to consider the prior condition to determine what loss was caused by the assaults. Therefore, to the extent that the evidence shows that the effect of the sexual assaults would have been greater because of his pre-existing injury, that pre-existing condition can be taken into account in assessing damages.

 

80.      Where a second wrongful act or contributory negligence of the plaintiff occurs after or along with the first wrongful act, yet another scenario, sometimes called the "crumbling skull" scenario, may arise. Each tortfeasor is entitled to have the consequences of the acts of the other tortfeasor taken into account. The defendant must compensate for the damages it actually caused but need not compensate for the debilitating effects of the other wrongful act that would have occurred anyway. This means that the damages of the tortfeasor may be reduced by reason of other contributing causes: Athey, at paras. 32-36.

 

81.      All these scenarios flow from the basic principle that damages must seek to put the plaintiff in the position he or she would have been in but for the tort for which the defendant is liable.

[340]     To rely on the “crumbling skull” argument, I would have to find that there was no finding of measurable risk that the Plaintiffs would have suffered loss without the sexual assault, and if so, there would be no basis to reduce the award for that risk. 

[341]     In this case, both arguments may have some applicability.  There was ample evidence that each of the Plaintiffs was somewhat compromised even before entering Mount Cashel.  Each had lost parents.  Each was left in very difficult circumstances.  In at least one of the Plaintiffs there was evidence of a potential for

a propensity for certain dysfunctional behavior.  Abandonment by a parent appeared to lead to a propensity for aggression based on his father’s history. 

[342]     Those considerations will determine which of the “skulls” is applicable in this case.  On the one hand, where a Plaintiff’s circumstances meant there were propensities to dysfunctional behavior even without the sexual assault, the “crumbling skull” argument could operate to reduce an award.  On the other hand, where the pre-admission circumstances simply rendered the Plaintiff more vulnerable but would not have resulted in pathological behaviour but for the sexual assault, then the “thin skull” argument may be applicable and no reduction in an award would result.  However, it must be remembered that an individual’s propensities for negative behaviour are quite complex, and it will be impossible to determine causation precisely. 

[343]     Notwithstanding the requirement that the court must make some effort to apportion responsibility for damages, the British Columbia Court of Appeal has blurred the distinction and made, in certain cases, all tortfeasors who caused or contributed to the injury, liable.  In B.(B.P.) v. B.(M.M.), 2009 BCCA 365 (CanLII) Justice Chiasson wrote at paragraph 43:

43.      It [sic] the injury is indivisible, the court must consider the possible application of the thin skull or crumbling skull rules in the context of the victim's original condition. If the crumbling skull rule applies, it forms part of returning the victim to his or her original condition and the tortfeasor is not responsible for events that caused the crumbled skull. Absent the application of the crumbling skull rule, where the injury is indivisible, all torfeasors [sic] who caused or contributed to the injury are 100% liable for the damages sustained by the victim.

[344]     The trial judge in that case did not find that the psychological injury was divisible.  But he did find that the abuse itself would have caused significant impairment.  At paragraph 50 of the Appeal decision:

50.      There was no finding by the trial judge that the psychological injury to the respondent was divisible. On the evidence, such a finding was not possible. The judge's conclusion in para. 84 that the appellant's "abuse of the [respondent] was of such severity that it alone would have caused significant permanent impairment of

her psychological health and function" is sufficient to hold him 100% liable for the damages she sustained. The fact that her uncle's conduct and the conduct of the neighbours exacerbated her condition is no answer.

[345]     This seems to support a finding about whether the impact of the sexual abuse can be divided from the physical abuse.  If it cannot be divided, but was significant, and would have caused significant impairment in the Plaintiff, then 100% liability could be assigned to the Defendant.  In this case, the sexual abuse suffered by two of the Plaintiffs was significantly greater than that of the other two.  The evidence disclosed that they all suffered from physical abuse.  Their testimony generally focused more on the harsh physical discipline than sexual activity.  

[346]     The Plaintiffs argue that they were at worst, “thin skulled”.  They submit that if psychological injuries are found to have been sustained by the Plaintiffs for non-compensable assaults, the injuries are indivisible as was the case in B.(B.P.).   Even where there is a finding of a “crumbling skull” situation, a defendant may nonetheless be liable.  In G.(B.M.) v. Nova Scotia (Attorney General), 2007 NSSC 27 (CanLII), Justice Edwards considered the case of an individual who was sexually abused by his parole officer.  The Plaintiff had been adopted into a difficult home, where abuse and violence were common.  He ran away from home on a number of occasions.  In addition, after the time in which he was abused by the parole officer, he was anally raped by another individual.  The issue of causation was a live one in this case, and after discussing the “thin skull” and “crumbling skull” doctrines, in particular arising from the decision of the Supreme Court in Athey, he concluded his discussion, at paragraph 156:

156.     BMG appears to be the classic "crumbling skull" situation. To paraphrase, in this case I am satisfied that there is a measurable risk that BMG's pre-existing condition would have detrimentally affected him in the future. The physical and mental abuse BMG suffered at home had to have taken a significant psychological toll. As well, both BMG and his sister Susan were told that because they were adopted they did not belong in the family and that they would never go anywhere. I think it is reasonable to conclude that feelings of inadequacy and lack of self-confidence would naturally ensue from such treatment.

[347]     He went on to say, at paragraph 159-160:

159.     The Defendant argues that BMG had options but that he made voluntary choices. The Defendant argues, for example, that BMG's failure to upgrade his formal education had nothing to do with the Lalo assaults. The Defendant suggests that, if you remove the assaults from BMG's history, his story and work history would be unchanged. In the Defendant's view, BMG chose his career path and is now where he wants to be.

 

160.     I cannot accept the Defendant's argument. To do so, I would have to conclude that the Lalo assaults constituted a momentary transient unpleasantness without any long-lasting psychological impact in BMG's life. That conclusion would ignore the psychological evidence and commonsense.

[348]     In that case, notwithstanding the finding of a “crumbling skull” situation, Justice Edwards assessed damages against the defendant on the basis that the defendant was fully liable for the psychological outcome of the Plaintiff.  The Plaintiffs in this case argue that in BMG the Plaintiff was more compromised before the sexual abuse took place.  He had already suffered psychological problems from the abuse in the home.  In this case, all the Plaintiffs had suffered the loss of a parent.  It would not be reasonable to say that every child who had experienced the death of a parent was a “crumbling skull”.  This is a reasonable argument.  These Plaintiffs were certainly “thin skulled” individuals.  Their life circumstances had rendered them vulnerable to further damage.  But they could not be said to have already established a dysfunctional pattern of life merely because of the loss of a parent.  For them, the harm and betrayal of the Christian Brothers had a greater impact than it might otherwise.

[349]     The Plaintiffs cited an academic study which supports the view that early parental loss may not necessarily have an impact on adult life.  An excerpt at page 7 of the article:

A unique feature of this study was its exploration of the impact of early parental death over the life course of the participants up to as long as 71 years after the death of a parent(s). Crucially this brought into view the damage and effects on the individual overtime as a consequence of inappropriate or neglectful management. …

 

Our research suggests that if the social network addresses the necessary ‘mothering/fathering’ then a child does not appear to be affected in adult life.

 

Ellis, Dowrick and Lloyd-Williams, Journal of the Royal Society of Medicine February 2013, 106(2), at page 7.

[350]     In summary, causation is a significant issue in this case.  I must be satisfied that, but for the sexual abuse on the Plaintiffs, they would not have suffered the loss.  I must consider whether the sexual abuse as a causal factor, which is actionable, can be divided from the physical abuse, which is not actionable. 

[351]     I must consider whether the original position of each of these Plaintiffs, involving parental loss and significant disruption in their pre-admission lives, created a measurable risk to their future lives.  If so, was the sexual abuse a material contribution to their future circumstances?

[352]     Finally, in terms of causality, is the “thin skull” analysis appropriate, or should each be considered as “crumbling skull” Plaintiffs?

Damages – Overview

[353]     Each of the Plaintiffs testified as to their experiences at Mount Cashel.  They were questioned about what they remembered from their pre-orphanage life, and for the most part, they could remember life at that time.  They entered the orphanage following the death of one parent.  Each has an individual story. 

[354]     They all testified about the austere environment at the orphanage, but in particular, they spoke of the strict and often harsh discipline, or as they viewed it, physical abuse.  They also testified about sexual abuse, two of them having experienced much more serious violations than the other two. 

[355]     They all viewed the violent discipline and the sexual abuse as going hand in hand.  The sexual acts were committed generally, but not exclusively, by the Brothers who were the most violent.

[356]     An assessment of damages in this case starts with the premise that the evidence of abuse is not contradicted.  Each of these Plaintiffs suffered physical abuse, which even by the standards of the day was quite harsh.  They also suffered sexual abuse, including R.S., whose testimony supported, in my view, a finding of “misconduct of a sexual nature.”  However, the degree of sexual abuse, considering its frequency and intensity, varied quite significantly among them.  Since only sexual abuse is actionable, I must consider in an assessment of damages the circumstances of sexual abuse for each Plaintiff.

[357]     The Nova Scotia Court of Appeal, in affirming the trial court’s decision, set out factors to be considered when assessing damages.  In G.(B.M.) v. Nova Scotia (Attorney General), 2007 NSCA 120 (CanLII) the court said, at paragraphs 132 et.seq.:

132.     In my view, an award of non-pecuniary damages in sexual battery cases ought to take into account the functions of the award. These are to provide solace for the victim's pain and suffering and loss of enjoyment of life, to vindicate the victim's dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts.

 

 

134.     The Supreme Court in Blackwater v. Plint, 2005 SCC 58 (CanLII), [2005] 3 S.C.R. 3 (S.C.C.) at para. 89 approved the factors consider by the trial judge in that case: Blackwater v. Plint, 2001 BCSC 997 (CanLII), [2001] B.C.J. No. 1446 (B.C. S.C.) at para. 398 ff. These include:

 

• the circumstances of the victim at the time of the events, including factors such as age and vulnerability;

• the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were;

• the circumstances of the defendant, including age and whether he or she was in a position of trust; and

• the consequences for the victim of the wrongful behaviour including ongoing psychological injuries.

 

135.     Consideration of these factors, in my view, will assist in determining an appropriate amount of non-pecuniary damages to serve the functions of providing solace for the pain, suffering and loss of enjoyment of life flowing from the assaults, of demonstrating vindication of the victim's rights of personal dignity and individual autonomy and, with regard to aggravated damages, of appropriately recognizing the humiliating and undignified nature of the defendant's conduct.

[358]     Consideration of these factors leads to the question of whether the cap on non-pecuniary damages for catastrophic injuries applies.  That cap was put in place by the Supreme Court of Canada in a trilogy of cases in 1978 and served to limit damage awards for the most serious of injuries.  However, the Supreme Court has indicated that for strong policy reasons, it would not apply in cases that did not involve catastrophic personal injuries arising from accidents and medical malpractice: Young v. Bella, 2006 SCC 3 (CanLII) at paragraphs 65-66.

[359]     Both sides in this case have submitted authorities which provide a range of awards for cases of sexual abuse.  It is possible to distinguish them on the basis of the frequency and intensity of the misconduct, and as well on the long-term effects.  The authorities submitted indicate a range of awards, and it is apparent that the more recent cases demonstrate an increasing level of damage awards.

[360]     For less frequent sexual assault and abuse I have reviewed the following cases:

1.     Jacobi. v. Griffiths, [1995] B.C.W.L.D. 3081, 1995 CarswellBC 2764; (S.C.).  Consideration of one incident of sexual assault which consisted of fondling and taking off underwear.  The evidence showed psychological and emotional trauma as a result of the assault.  An award of $35,000, or $55,000 in current dollars. The case was reversed on appeal on unrelated grounds.

2.     V.P. v. Canada, 1999 SKQB 180 (CanLII).  In this case an employee at a residential school sexually abused the Plaintiff on several occasions over one month while being disciplined. The Plaintiff developed a number of psychological and addictions difficulties, not all of which were attributable to the abuse.  The court awarded general damages of $35,000 ($46,000 current).

3.     Curran v. MacDougall, 2006 BCSC 933 (CanLII).  While an inmate at a provincial institution, the Plaintiff was sexually assaulted by a corrections officer on two occasions.  He suffered Post-Traumatic Stress Disorder (“PTSD”), depression and substance abuse as a result.  He was awarded $50,000 ($58,000 current).

4.     Evans v. Sproule (2008), 176 A.C.W.S. (3d) 895, 2008 CarswellOnt 8753 (Sup. Ct.).  An award for a single incident of sexual assault by a police officer on a female at a traffic stop.  Evidence of significant effects on life many years later.  Award for general and aggravated damages was $150,000.

5.     T.(K.) v. Vranich et.al., 2011 ONSC 683 (CanLII).  An employer sexually assaulted a server at a night club.  The assault was one instance and lasted about 10 minutes.  The Plaintiff was symptomatic some four years after.  An award of $125,000 included general and aggravated damages.

6.     M.(D.) v. W.(W.), 2013 ONSC 4176 (CanLII).  One incident of abuse by an uncle when the Plaintiff was 12 attracted a general damages award of $95,000.

7.     Rich v. Bromley Estate, 2013 NLCA 24 (CanLII).  The Plaintiff was an inmate at a provincial corrections facility for youth.  The Defendant, now deceased, was alleged to have sexually abused him on two occasions.  Not all of the Plaintiff’s difficulties in life were attributable to the abuse.  The court awarded general damages of $45,000, including $15,000 aggravated damages.

[361]     While the range in these cases is from a low of $46,000 (in current dollars) to a high of $150,000, there are factors to note.  First, the more recent cases generally carry higher awards, indicating a trend for the courts to acknowledge the severe impacts of sexual abuse on victims over their lifetime.  Second, the difference also reflects the severity of the impacts.

[362]     For more frequent and long-term abuse with greater impact, other authorities provide a range of awards:

1.     C.(D.) v. C.(K.) (1993), 1993 CanLII 8300 (NL SC), 108 Nfld. & P.E.I.R. 314, 1993 CarswellNfld 302 (S.C.T.D.).  The Plaintiff suffered from regular sexual abuse by his father from age 7 to 15.  The court found that the abuse was chronic and repeated, and consisted of acts of fondling, fellatio and buggery.  It led to severe depression and attempted suicide.  There was evidence of symptoms of PTSD, and a destroyed self-esteem. General damages were awarded in the amount of $65,000 ($98,000 in 2016).

2.     B.(E.). v. Order of the Oblates of Mary Immaculate (British Columbia), 2001 BCSC 1783 (CanLII). The Plaintiff was subject to sexual assaults about 2 times per week from age 7 to 11 at a residential school.  Damages of $150,000 ($199,000 in 2016) were awarded, which included $25,000 in aggravated damages.  The assaults were frequent, persistent, and severe and resulted in significant interpersonal difficulties, anxiety, symptoms of PTSD, depression and alcohol abuse.

3.     G.(B.M.) v. Nova Scotia (Attorney General), 2007 NSCA 120 (CanLII).  The court affirmed a trial award of $125,000 for general damages, plus $500,000 in past and future income loss.  In that case there were multiple acts of abuse over a period of several months by a probation officer assigned to his supervision.

4.     M.(K.M.) v. Roman Catholic Episcopal Corp. of the Diocese of London in Ontario, 2011 ONSC 2143 (CanLII).  Justice Little considered an historic case of abuse by a priest against a female child during the period she was between 7 and 10 years.  There were repeated acts of fondling, digital penetration, and ejaculation, but no intercourse.  The court accepted that the impact on her life had been significant, despite her “fighting spirit”.  General damages were set at $190,000.

 

5.     Shaw v. Staples, 2013 ONSC 3290 (CanLII).  The Plaintiff shopped at a health food store, and was subject to an abduction, sexual assault and imprisonment over 7 hours by a member of the staff.  The court awarded $150,000 general damages plus $75,000 aggravated damages.

6.     Langstaff v. Marson, 2013 ONSC 1448 (CanLII).  The Plaintiff was a boy 12 years old and was subject to sexual assault repeatedly by a teacher over a period of about 15 months. Following a trial, a jury awarded $347,293 as general and aggravated damages.

[363]     These awards range from a low of $98,000 (in current dollars) to a high of $347,293.  It is clear that over time the awards have increased significantly, reflecting the change in the view of the courts towards the impacts of child sexual abuse.

Aggravated Damages

[364]     These awards, in most cases, have also included aggravated damages.  In C.(D.) the court addressed the issue of aggravated damages.  Justice Orsborn said, at paragraphs 25-26:

25.      I must confess that I have difficulty in applying the concept of aggravated damages in a situation where one is attempting both to provide compensation for the loss suffered and to avoid any element of punishment or deterrence. To the extent that the injuries are aggravated by the manner in which, or means whereby, they were incurred, appropriate compensation would be awarded on the basis of the injuries themselves; if this is done, nothing need be added to take into account the way in which the loss happened.

 

26.      In my view, in a case of damages for sexual abuse, and where a criminal sanction has already been applied to the conduct in question, there should be no separate consideration of the concept of aggravated damages, even under the umbrella of general damages. Rather, compensation should be awarded based on a full examination of the loss and injuries incurred; this, of necessity, will take into account any aggravation of the injuries caused by the manner in which they were inflicted.

[365]     A contrary view was taken in John Doe v. O'Dell (2003), 2003 CanLII 64220 (ON SC), 230 D.L.R. (4th) 383, 2003 CarswellOnt 3456 (Sup. Ct.), where Justice Swinton of the Ontario Superior Court outlined factors which might be relevant in considering whether aggravated damages are appropriate, at paragraph 290:

290.     In cases where sexual abuse has been carried out in particularly humiliating and undignified circumstances, the plaintiff may be entitled to aggravated damages. … Factors that can affect the assessment of aggravated damages in cases of sexual abuse include the relationship of the parties, the number of assaults, the duration of the abuse, the age of the plaintiff, the degree of violence and coercion, the nature of the abuse, the extent of the impact on the plaintiff and the lack of remorse. …

[366]     I accept that the view expressed in O’Dell reflects an evolution in thinking surrounding the devastating impact of child sexual abuse.  The factors set out provide a framework for consideration of the intensity of the assaults, and the degrading way they were carried out.  This kind of conduct normally results in the Plaintiff suffering increased harm.  In this case, there is considerable evidence of the use of humiliation, attacks on dignity, and complete disregard for the personal integrity of these Plaintiffs when they were very vulnerable children by religious men charged with their care and welfare.  Those factors will have to be taken into account when considering the level of non-pecuniary and aggr