Canada and United Church Vicariously Liable for Sexual Abuse in Residential School
The Supreme Court of Canada Decision in Blackwater v. Plint
I. Introduction
On October 21, 2005, the Supreme Court of Canada ("SCC") issued its judgment in Blackwater v. Plint, 2005 SCC 58. This was an appeal from the British Columbia Court of Appeal, W.R.B. v. Plint, [2003] B.C.J. No. 2783 (QL) (BCCA). The following is a case summary with comments.
The Appellant, Frederick Leroy Barney, attended the Alberni Indian Residential School ("AIRS") and while there was subjected to sexual abuse by Plint, a dormitory supervisor.
II. EXECUTIVE SUMMARY
In a judgment written by Chief Justice McLachlin, the Supreme Court of Canada dismissed the appeal from the Appellant, Frederick Leroy Barney, and allowed Canada's appeal in part.
The Court found that no basis had been established for finding negligence, breach of fiduciary duty or for reassessing the damage awards.
The Court held that the BC Court of Appeal erred in finding that the United Church was not vicariously liable for the sexual abuse to Mr. Barney and that the Court of Appeal misapplied the Bazley v. Curry, [1999] 2 S.C.R. 534, decision in finding that the Church was protected by the doctrine of charitable immunity. The Court restored the trial judge's conclusion that both Canada and the Church are vicariously liable and damages should be distributed 75% and 25%, respectively.
The Court found that the trial judge had erred in finding a non-delegable statutory duty on the terms of the Indian Act and upheld the Court of Appeal's award to Mr. Barney for loss of future earning opportunity.
The Court made no order as to costs, leaving each party to bear its own costs.
III. LOWER COURT FINDINGS
The trial judge found that all claims other than those of a sexual nature were time-barred and he held that Plint was liable to six plaintiffs for sexual assault. The trial judge held Canada liable for the assaults on the basis of breach of non-delegable statutory duty and found that Canada and the Church were jointly and vicariously liable for these wrongs. He apportioned fault 75% to Canada and 25% to the Church.
The trial judge awarded damages to Mr. Barney as follows:
- $125,000 in general damages;
- $20,000 in aggravated damages against the Church and Canada;
- $40,000 in punitive damages against Plint; and
- $5,000 in a future counselling fee.
The British Columbia Court of Appeal applied a doctrine of charitable immunity to exempt the Church from liability and to place all liability on Canada on the basis of vicarious liability. The Court of Appeal stated that Canada was more responsible then the Church for the wrongs and that Canada was in a better position to compensate for the damage, and thus concluded that the Church should not be vicariously liable.
The Court of Appeal awarded Mr. Barney an additional $20,000 for loss of future earning opportunity.
IV. ISSUES
McLachlin C.J.C. identified the legal issues as the following:
- Negligence
- Vicarious liability
- The doctrine of charitable immunity
- Non-delegable statutory duty
- Fiduciary duty
- Apportionment of damages
- Damages: the effect of prior harm
- General and aggravated damages: quantum
- Punitive damages
- Loss of future opportunity
The Chief Justice states that a more general issue "concerns how claims such as this, which reach back many years, should be proved, and the role of historic and social science evidence in proving issues of liability and damages" (para. 9). She asks: "to what extent is evidence of generalized policies toward Aboriginal children relevant?" and "can such evidence lighten the burden of proving specific fault and damage in individual cases?" She concludes as follows:
...general policies and practices may provide relevant context for asserting claims for damages in cases such as this. However, government policy by itself does not create a legally actionable wrong. For that, the law requires specific wrongful acts causally connected to damage suffered. This appeal must be decided on the evidence adduced at trial and considered by the Court of Appeal (para. 9).
V. NEGLIGENCE
Mr. Barney argued that the trial judge erred in dismissing the claims that the Church and Canada were negligent in employing and continuing to employ various employees when they knew or ought to have known that the employees were paedophiles, in failing to take reasonable steps to prevent or stop physical and sexual assaults, in failing to investigate abuse after it was reported by the students, and in failing to exercise reasonable supervision and direction over their employees.
The trial judge concluded that the harm was not foreseeable on the evidence before him. He also found that, given the standards and awareness of the time, it could not be contended that they ought to have known of the risks. The SCC notes that by contemporary standards, the measures taken were inadequate and the environment was unsafe. However, by the standards of the time, constructive knowledge of a foreseeable risk of sexual assault to the children was not established.
Mr. Barney, instead of pointing out specific errors in the trial judge's application of the legal test and his conclusion on the standard of care, focused on what he perceived as errors in the trial judge's factual findings. The SCC concludes that "the trial judge addressed these matters thoroughly and sensitively in his reasons, and the Court of Appeal correctly concluded that no error in his conclusions on negligence had been demonstrated" (para. 16). The SCC dismissed Mr. Barney's appeal on this point.
The trial judge's findings were clearly based on the specific evidence put forth in this case. This leaves the door open to a future claim of negligence if the evidence shows that the harm was foreseeable.
VI. VICARIOUS LIABILITY
The SCC held that the trial judge was correct in concluding that both the Church and Canada are vicariously liable for the wrongful acts of Plint. As the SCC notes, vicarious liability may be imposed where there is a significant connection between the conduct authorized by the employer and the wrong.
The SCC notes that the trial judge made at least eight factual findings that support his conclusion that the Church was one of Plint's employers and should be vicariously liable for the assaults: a) the principal was hired by the Church; b) it was the principal's understanding that the Church hired and fired him; c) the Church was involved in all aspects of the operation and management of AIRS; d) the Church managed a pension plan for lay employees; e) the principal's authority to dismiss employees was subject to review by the Church, and dismissed employees could appeal to the Church Advisory Committee; f) the Church made periodic grants to the school's operation, guaranteed the AIRS overdraft and set a limit to the school's line of credit; g) the Church inspected the school annually and provided the Christian education; and h) the Church appointed an advisory committee to ensure that Church policies were being carried out at the school.
In rejecting the Church's vicarious liability, the Court of Appeal relied on Canada's degree of control over AIRS, the Church's specific mandate to promote Christian education and the difficulty of holding two defendant's vicariously liable for the same wrong. The SCC concludes that "none of these considerations negate the imposition of vicarious liability on the Church" (para. 32).
The SCC held that the Church played a significant role in the running of the school. The Court also rejected the Court of Appeal's assertion that Plint's employment as a dormitory supervisor fell outside the Church‘s mandate to make decisions regarding the provision of a Christian education. They state, at paragraph 35, that "[t]he Church in fact ran the dormitory, as well as other parts of the school. Whether or not that fell within some formal definition of its objectives is irrelevant."
VII. DOCTRINE of CHARITABLE IMMUNITY
The Court of Appeal found that the Church was exempted from any liability on the basis of the doctrine of charitable immunity. The SCC states that this conclusion rests on a misapprehension of the principles governing vicarious liability and on the decisions in Bazley and Jacobi v. Griffiths, [1999] 2 S.C.R. 570 ("Bazley").
The Court of Appeal held that the party best able to bear the loss should be liable, provided it bears more responsibility than a party less able to pay. The SCC rejects this reasoning and states that "[t]his class-based exemption finds support neither in principle nor in the jurisprudence" (para. 41). The SCC explains that this doctrine would not motivate such non-profit organizations to take precautions to screen their employees and protect children from sexual abuse; the presence of government does not guarantee the safety of children. Also, in this case, the Church was not working with volunteers and ran the residential school with employees; thus, arguments that it was less able to supervise its employees are inapplicable.
Further, the SCC notes, the charitable exemption is problematic because it suggests, contrary to legal principle, that lesser responsibility should be converted to no liability, and organizations may claim to be non-profit when circumstances may provide that the law might not wish to favour the organization with an exemption.
VIII. NON-DELEGABLE STATUTORY DUTY
The trial judge held that Canada was under a non-delegable statutory duty to ensure the safety and welfare of the students at the school under ss. 113 and 114 of the Indian Act. The SCC found that the text of ss. 113 and 114 does not support the inference of a mandatory non-delegable duty for two reasons: first, the provisions use the permissive term "may", as opposed to the directive term "shall", and second, the power of the government to enter into agreements with religious organizations for the care and education of Aboriginal children suggests that the duty is delegable.
The SCC concludes that the Indian Act falls short of creating a mandatory duty to ensure the health and safety of children in residential school.
IX. FIDUCIARY DUTY
The argument for breach of fiduciary duty was presented to the SCC on two different bases: one individual, one collective.
The individual argument is that "the government of Canada and the Church occupied a trust-like relationship with attendant trust-like duties with respect to Mr. Barney and other students at the school" (para. 59).
The SCC concludes as follows:
Assuming such a duty did exist, the trial judge found that it was not breached in this case. He specifically found that neither the Church nor Canada were dishonest or intentionally disloyal. These findings of fact have not been negated. It follows that a breach of fiduciary duty toward Mr. Barney and his schoolmates has not been established (para. 60).
There was also an argument, presented to the SCC, of a broader fiduciary duty focussing on Aboriginal children collectively. This argument is that the residential school system robbed Aboriginal children of their culture, communities and support and placed them in environments of abuse. It was argued before the SCC, that this amounted to dishonest and disloyal conduct that violated Canada's fiduciary duty to Aboriginal peoples.
The SCC concludes that because this argument was not raised in the courts below, it cannot be resolved on this appeal. This argument was pursued only at the Supreme Court of Canada level and then mainly by interveners. The studies and writings that were presented in support were not proved in evidence in the courts below. The SCC states that "it would be unfair to rely on this material and inappropriate to deal with the larger argument" (para. 62).
The SCC held that "the argument on fiduciary duty presented in this case cannot succeed" (para. 63)(emphasis added).
The SCC's ruling on fiduciary duty is based on the facts presented, or not presented, at trial. The Court leaves open the possibility of a successful argument on breach of fiduciary duty. On the individual argument, the SCC upheld the trial judge's findings that there was no breach of fiduciary duty in these particular circumstances. The trial judge specifically found that neither the Church nor Canada were dishonest or intentionally disloyal. This leaves open the possibility of a successful claim if a plaintiff presented evidence which proved that the Church or Canada were dishonest or intentionally disloyal.
On the broader argument on fiduciary duty, dealing with the system of residential schools as a whole, the SCC found that, because no evidence addressing this issue was brought before the lower courts, it would be unfair and inappropriate to deal with this argument at this level. This leaves open the possibility for a plaintiff to bring an action for breach of fiduciary duty resulting from the residential school system as a whole.
X. APPORTIONMENT of DAMAGES
Canada argues that the conclusion of the trial judge to apportion damages 75-25 runs counter to the British Columbia Negligence Act, R.S.B.C. 1996, c. 333 which, at s. 1(2), provides that if it is not possible to establish different degrees of fault, the liability must be apportioned equally. Canada argues that because vicarious liability is not predicated on fault, apportionment of damages must be divided equally.
The SCC holds that while it remains an open question whether the term "fault" in the Negligence Act includes vicarious liability, it is not necessary to resolve this dispute because if vicarious liability amounts to "fault" under the Negligence Act, the trial judge apportioned that Canada was 75% at fault, and thus s. 1(2) would not apply. If vicarious liability is not "fault" under the Negligence Act, then the Act does not apply and then liability would be assigned at common law with the same result.
The SCC states that the degree of fault may vary depending on the level of supervision and parties may be more or less vicariously liable for an offence, depending on their level of supervision and direct contact. The trial judge found Canada to be more "senior" in the partnership, and thus the SCC found, in these circumstances, an unequal apportionment of responsibility to be appropriate.
XI. DAMAGES: THE EFFECT of PRIOR ABUSE
As the SCC notes, the calculation of damages for sexual assault to Mr. Barney is complicated by two other sources of trauma: a) trauma suffered in his home before he came to residential school; and b) trauma from non-sexual abuse and deprivation suffered at AIRS that was statute barred.
The law states that a plaintiff is entitled only to be compensated for loss caused by the actionable wrong and that it is a 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] 3 S.C.R. 458, para. 32). The trial judge concluded that these other sources of trauma made it likely that Mr. Barney would have suffered serious psychological difficulties even if the sexual abuse had never occurred.
The Court notes that "[i]t is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort" (para. 78).
The SCC notes the "thin skull rule" – the defendant takes his victim as he finds him. The SCC states, at paragraph 79:
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 this pre-existing injury, that pre-existing condition can be taken into account in assessing damages.
The SCC states that while the defendant must compensate for the damages it actually caused, it need not compensate for the effects of the other wrongful acts that would have occurred anyway. Thus, damages may be reduced by reason of other contributing causes.
The SCC notes that there was an absence of evidence that Mr. Barney's family difficulties, prior to coming to residential school, had exacerbated the damage he suffered from the sexual assaults. Thus, the trial judge "had no choice but to attempt to isolate those traumas" (para. 82). The Court also states that there was no legal basis for the trial judge to allow damages suffered as a result of statute-barred wrongs, such as physical beatings committed at AIRS, to increase the award of damages.
The SCC ruling, again, turned on the evidence led at trial. Thus, the SCC does not rule that trauma suffered before residential school does not exacerbate the damage suffered by sexual abuse in residential school, leaving open the possibility for this argument to be raised in subsequent actions, provided that proper supporting evidence is presented before the trial court.
Mr. Barney also argued the maxim ex turpi causa non oritur actio, that none should profit from his own wrong. He argued that reducing his damages award allows the Church and Canada to profit from their own immoral and illegal conduct. The SCC does not agree with this argument and upholds the trial judge's damage award.
XII. PUNITIVE DAMAGES
The SCC concludes that the trial judge "correctly states that the punitive damages cannot be awarded in the absence of reprehensible conduct specifically referable to the employer" (para. 91).
The SCC based its conclusion on the specific evidence adduced at trial. This leaves open the possibility that punitive damages may be awarded against an employer if there is evidence of "reprehensible conduct" by the employer.
XIII. LOSS of FUTURE EARNING OPPORTUNITY
The trial judge did not order any damages for loss of future earning ability, while the Court of Appeal allowed an award of $20,000. The appellant sought to have the award raised to $240,000.
The SCC held that, in this specific case, "no evidentiary record exists to specifically quantity any future loss of earnings and that the Court of Appeal, noting the inadequacy of the evidentiary record on this point, was correct to award a conventional amount" (para. 96).
While the SCC did not find any evidence presented to specifically quantify loss of potential earnings, it is important that the Court accepted this as a valid legal concept. A larger award would clearly be available if the proper evidentiary base was laid.
XIV. CONCLUSIONS
The Supreme Court of Canada decision will be a disappointment to the individual plaintiff. In essence, this decision endorses the trial judgment. The restoration of the liability of the Church makes sense as the Church was involved in the entire residential school enterprise.
For individual plaintiffs who have not yet had their day in court, the Supreme Court's message is that evidence is all important. Many of the issues in this case were decided based on the evidence led at trial: an action in negligence can still succeed if a plaintiff can provide evidence that shows that the harm was foreseeable; Canada could still be found liable for breach of fiduciary duty if evidence was brought before trial that shows a breach occurred; the Supreme Court of Canada did not rule out the possibility that punitive damages could be awarded against Canada or the Church if there was evidence of reprehensible conduct; the Court accepted the concept of "loss of future earnings" as a valid legal concept and did not rule out the possibility of a larger award if evidence were presented to specifically quantify the loss of earnings.
This case is not meant to endorse a particular range of damages for sexual abuse. The Supreme Court of Canada did not interfere with the trial judge's range of damages because the trial judge followed correct legal principles based on the evidence put before him.
The recent Supreme Court of Canada case in H.L. v. Canada (Attorney General), 2005 SCC 25, stands for the principle that a trial judge's primary findings of fact are only reviewable on appeal on a standard of palpable and overriding error. This is summarized in the headnote:
Courts of appeal in Canada, absent an express legislative instruction to the contrary, cannot disregard the governing principle of appellate intervention on questions of fact. They may make their own findings and draw their own inferences, but only where the trial judge is shown to have committed a palpable and overriding error or made findings of fact, including inferences of fact, that are clearly wrong, unreasonable, or unsupported by the evidence. A court of appeal cannot substitute for the reasonable inference preferred by the trial judge, an equally, or even more, persuasive inference of its own.
In that case, the trial judge had awarded the plaintiff a total of $80,000 in non-pecuniary damages, a relatively large award.
The trial judgement is one of a large number of precedents quantifying damages for sexual abuse that reflects the plaintiff's particular circumstances. There are many sexual abuse cases that have gone through Canadian courts that reflect a wide range of damages and deal with both First Nation and non-First Nation plaintiffs and potential plaintiffs should not rely on the level of damages awarded by the trial judge.