Blackwater v. Plint (2005), 339 N.R. 355 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2005] N.R. TBEd. OC.024
Frederick Leroy Barney (appellant) v. Her Majesty The Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development and the United Church of Canada (respondents)
Her Majesty The Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development (appellant) v. United Church of Canada, R.A.F., R.J.J., M.L.J., M.W. (2), Frederick Leroy Barney and Patrick Dennis Stewart (respondents) and Assembly of First Nations, Women’s Legal Education and Action Fund, Native Women’s Association of Canada and DisAbled Women’s Network of Canada (intervenors)
(30176; 2005 SCC 58; 2005 CSC 58)
Indexed As: Blackwater et al. v. Plint et al.
Supreme Court of Canada
McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
October 21, 2005.
Summary:
The plaintiffs were students at the Alberni Indian Residential School on Vancouver Island in the 1940s, 1950s and 1960s. In four separate actions, the 27 plaintiffs sued Canada, the United Church of Canada, Plint and others for damages arising from alleged sexual assaults and other wrongs done to them while they were residents at the school. The trial was conducted in three phases: vicarious liability, other liability issues and damages. Most of the cases were settled between the first and second phases. The final judgment dealt with the actions of only seven plaintiffs. In six of them, the trial judge found that the allegations of sexual assault were proven to have been committed by Plint, a dormitory supervisor. The action of the seventh plaintiff (M.J.) was dismissed. In all of the actions, the trial judge found that all causes of action other than sexual assault were statute-barred.
The British Columbia Supreme Court, in a decision reported at [1998] B.C.T.C. Uned. 755, held that Canada and the Church were jointly liable on the basis of vicarious liability for the acts of Plint. Liability was apportioned 75% against Canada and 25% against the Church. In a second judgment, reported at [2001] B.C.T.C. 997, the Supreme Court dealt with issues of the vicarious liability of Canada and the Church for acts of other perpetrators, negligence, breach of fiduciary duty, non-delegable statutory duty, limitation defences, third party claims by the Church and Canada against each other and the assessment of damages. The Church appealed the finding of vicarious liability and damages. Canada cross-appealed the apportionment of liability, the finding that it breached its non-delegable duty of care and damages. The plaintiffs all cross-appealed the dismissal of their allegations of negligence, non-delegable duty, breach of fiduciary duty and vicarious liability. The plaintiffs also appealed the dismissal of their claims for damages for cultural losses. Each plaintiff appealed the amount of damages awarded to him.
The British Columbia Court of Appeal, in a judgment reported at (2003), 192 B.C.A.C. 1; 315 W.A.C. 1, allowed the Church’s appeal, but dismissed Canada’s appeal. The Church was not vicariously liable because of the doctrine of charitable immunity. The court allowed the appeal of the plaintiff M.J. and ordered a new trial. The appeal of the plaintiff Barney was allowed in part respecting damages for impairment of earning capacity. The appeals of the plaintiffs R.J.J. and M.W.(2) were allowed in part respecting nonpecuniary (incl. aggravated) damages. The appeals of all other plaintiffs were dismissed. The plaintiff Barney appealed. Canada appealed the granting of charitable immunity to the Church, the finding that it breached a non-delegable duty and the apportionment of fault.
The Supreme Court of Canada dismissed Barney’s appeal and allowed the cross-appeal in part. The court restored the trial judge’s judgment on the issues of joint vicarious liability and the assessment and apportionment of damages. The court set aside the Court of Appeal’s finding of charitable immunity from vicarious liability.
Actions – Topic 1704
Cause of action – Bars – Ex turpi causa non oritur actio – The Supreme Court of Canada stated that “the maxim ex turpi causa non oritur actio cannot be applied to evade legal limits or undermine the legal system. Applying it to permit damages to be awarded for wrongful acts that are subject to limitation periods that have expired would subvert the legislation and compensate for torts that have been alleged but not proven. It would be to override legislative intent and fix liability in the absence of legal proof.” – See paragraph 85.
Crown – Topic 1527
Torts by and against Crown – Liability of Crown for acts of servants – When Crown liable – Students at an Indian residential school were sexually assaulted by a dormitory supervisor in the 1940s, 1950s and 1960s – The school was jointly operated by the federal Crown (Canada) and the United Church as partners – The Church hired, fired and supervised employees – The trial judge found Canada and the Church vicariously liable for the sexual abuse – The Court of Appeal exempted the Church from vicarious liability on the basis of charitable immunity, which provided that a charitable organization would not be liable as long as they were less at fault than a party (Canada) which was better able to bear the loss – The Supreme Court of Canada held that there was no basis for charitable immunity – The Church exerted sufficient control over the school to be vicariously liable – The supervisor was an employee of both the Church and Canada -The court rejected the submission that vicarious liability was negated by considerations of Canada’s greater degree of control, the Church’s specific mandate to promote Christian education and the difficulty of holding both Canada and the Church vicariously liable for the same wrong – See paragraphs 18 to 44.
Crown – Topic 1578
Torts by and against Crown – Negligence by Crown – Sexual abuse by employees – Six former students at an Indian residential school were sexually assaulted by a dormitory supervisor in the 1940s, 1950s and 1960s – The trial judge dismissed the students’ claim of negligence against the federal Crown (Canada) and the United Church, who operated the school as partners – The students claimed that Canada and the Church were negligent in employing or continuing to employ various employees they knew or ought to have known were paedophiles, in failing to take reasonable steps to prevent or stop sexual abuse, in failing to investigate abuse reported by students and in failing to exercise reasonable supervision and direction over employees – The Supreme Court of Canada affirmed dismissal of the negligence claim – Canada and the Church were sufficiently proximate to students to owe a duty of care – However, the risk of sexual assaults, judged by the standards of that time period, was not reasonably foreseeable – Neither Canada nor the Church knew or ought to have known of the systemic sexual abuse at the school – The measures taken to prevent sexual abuse were sufficient for that time period, notwithstanding that the measures would have been inadequate for a present day institution – See paragraphs 11 to 17.
Damage Awards – Topic 492
Injury and death – General damage awards – Loss of earning capacity – [See
Damages – Topic 1549
].
Damage Awards – Topic 627
Torts – Injury to the person – Sexual assault (incl. sexual abuse) – Barney was sexually abused from age 7-12 by a dormitory supervisor while a student at an Indian residential school – The abuse consisted of forced fellatio three times, anal rape once and other likely sexual assaults – Death threats accompanied these violent, brutal assaults – The supervisor covered his mouth, punched him in the stomach and struck him in the head and ears – The abuse resulted in a personality disorder that inhibited development of personal relationships and produced impulsive behaviour and anger management problems – Barney suffered from impaired self-esteem and had difficulty formulating an identity – The trial judge awarded nonpecuniary damages of $145,000 (incl. $20,000 aggravated damages) – The Supreme Court of Canada dismissed Barney’s appeal against the damage award – There was no basis to interfere with the award – See paragraphs 88 to 89.
Damages – Topic 508
Limits of compensatory damages – General – Causes independent of wrongful act – Canada was found vicariously liable for sexual assaults committed by a dormitory supervisor against six former students at an Indian residential school – The British Columbia Court of Appeal held that the trial judge did not err by taking into account, in his assessment of nonpecuniary damages, unrelated contributing causes of the plaintiffs’ present psychological conditions (emotional abuse, racism, isolation and hunger) – The court rejected the argument that other potentially causal factors could be considered only if they were medical conditions of impairment or dysfunction and only if the conditions were manifest and disabling at the time of the tort – The Supreme Court of Canada agreed that those independent causes were properly considered in assessing damages -The court stated that the trial judge “recognized the ‘daunting task’ of untangling multiple interlocking factors and confining damages to only those arising from the actionable torts, the sexual assaults” – See paragraphs 74 to 87.
Damages – Topic 1297
Exemplary or punitive damages – Conditions precedent (or when awarded) – Six former students at an Indian residential school were sexually assaulted by a dormitory supervisor – The federal Crown (Canada) was found vicariously liable – The trial judge awarded punitive damages only against the supervisor – The British Columbia Court of Appeal noted that punitive damages were awarded only against a defendant whose particular conduct merited condemnation – The court affirmed that Canada’s vicarious liability did not arise from any reprehensible conduct on its part, neither did Canada commit any independent actionable wrong on its own; therefore, Canada was not liable for punitive damages – The supervisor’s actions were not those of Canada (he not being top management) – The Supreme Court of Canada affirmed that Canada’s conduct did not meet the required threshold for awarding punitive damages – See paragraphs 90 to 92.
Damages – Topic 1302.1
Exemplary or punitive damages – Sexual assault (incl. sexual abuse) – [See
Damages – Topic 1297
].
Damages – Topic 1332.1
Exemplary or punitive damages – Liability of Crown – [See
Damages – Topic 1297
].
Damages – Topic 1549
General damages – General damages for personal injury – Impairment of earning capacity – Canada was found vicariously liable for sexual assaults committed by a dormitory supervisor against six former students at an Indian residential school – The British Columbia Court of Appeal awarded one student (Barney) $20,000 for impairment of earning capacity – The trial judge failed to consider that Barney’s psychological injury would, at least for a period of time in the future, foreclose for him some occupations that might otherwise be available – Barney appealed, claiming entitlement to $240,000 in damages – The Crown did not appeal the Court of Appeal’s award of $20,000 – The Supreme Court of Canada dismissed Barney’s appeal – See paragraph 93.
Damages – Topic 2422
Torts affecting the person – Assault – Abuse or sexual assault – [See
Damage Awards – Topic 627
].
Equity – Topic 3611
Fiduciary or confidential relationships – General principles – Crown – Six former students at an Indian residential school were sexually assaulted by a dormitory supervisor – The trial judge dismissed the students’ allegations of breach of fiduciary duty against the federal Crown (Canada) and the United Church – He found no evidence of dishonesty or intentional disloyalty towards the students sufficient to engage the law relating to fiduciary obligations – The Supreme Court of Canada affirmed that neither Canada nor the Church breached a fiduciary duty to the students – See paragraphs 56 to 63.
Equity – Topic 3645.1
Fiduciary or confidential relationships – Breach of fiduciary relationship – Churches and clergy – [See
Equity – Topic 3611
].
Master and Servant – Topic 3703
Liability of master for acts of servant – Torts – Wilful acts – Sexual abuse – [See
Crown – Topic 1527
].
Torts – Topic 49.40
Negligence – Standard of care – Particular persons and relationships – Charitable or non-profit organizations (incl. churches) – [See
Crown – Topic 1578
].
Torts – Topic 2505
Vicarious liability – General principles – Charitable immunity – [See
Crown – Topic 1527
].
Torts – Topic 2506
Vicarious liability – General principles – Apportionment of fault between multiple parties vicariously liable – Students at an Indian residential school were sexually assaulted by a dormitory supervisor in the 1940s, 1950s and 1960s – The school was jointly operated by the federal Crown (Canada) and the United Church as partners – The Church hired, fired and supervised employees – The trial judge found Canada and the Church vicariously liable for the sexual abuse and apportioned fault 75% to Canada and 25% to the Church – The Supreme Court of Canada affirmed the apportionment of fault, rejecting Canada’s submission that the jointly vicariously liable parties should each be 50% at fault under the Negligence Act – The parties were in a joint enterprise and the trial judge did not err in finding that Canada was more senior and exercised more control – Canada, which was in a better position to supervise and prevent sexual abuse, appropriately bore greater fault – See paragraphs 64 to 73.
Torts – Topic 2530
Vicarious liability – Master and servant – Employer – Liability for acts of employees – [See
Crown – Topic 1527
].
Torts – Topic 2551
Vicarious liability – For independent contractors – Nondelegable duties – Students at an Indian residential school were sexually assaulted by a dormitory supervisor in the 1940s, 1950s and 1960s – The school was jointly operated by the federal Crown (Canada) and the United Church as partners – The trial judge held that Canada had a nondelegable duty under ss. 113 and 114 of the Indian Act to ensure that students were kept safe at the school – The Supreme Court of Canada held that a nondelegable duty could not be inferred from ss. 113 and 114 – See paragraphs 45 to 55.
Torts – Topic 2648
Vicarious liability – Particular persons – Churches – [See
Crown – Topic 1527
].
Torts – Topic 6995
Defences – Particular defences – Ex turpi causa non oritur actio – [See
Actions – Topic 1704
].
Cases Noticed:
Bazley v. Curry – see P.A.B. v. Children’s Foundation et al.
P.A.B. v. Children’s Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119, refd to. [para. 20].
G.T.-J. et al. v. Griffiths et al., [1999] 2 S.C.R. 570; 241 N.R. 201; 124 B.C.A.C. 161; 203 W.A.C. 161, refd to. [para. 40].
R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 43].
E.D.G. v. Hammer et al., [2003] 2 S.C.R. 459; 310 N.R. 1; 187 B.C.A.C. 193; 307 W.A.C. 193; 2003 SCC 52, refd to. [para. 48].
Lewis et al. v. British Columbia, [1997] 3 S.C.R. 1145; 220 N.R. 81; 98 B.C.A.C. 168; 161 W.A.C. 168, refd to. [para. 50].
K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 57].
Chernesky v. Armadale Publishers Ltd., [1974] 6 W.W.R. 162 (Sask. C.A.), refd to. [para. 67].
Funnell v. C.P.R., [1964] 2 O.R. 325 (H.C.), refd to. [para. 67].
Bell Canada v. Cope (Sarnia) Ltd. (1980), 11 C.C.L.T. 170 (Ont. H.C.), refd to. [para. 67].
Gerling Global General Insurance Co. v. Siskind, Cromarty, Ivey & Dowler (2004), 12 C.C.L.I.(4th) 278 (Ont. Sup. Ct.), refd to. [para. 67].
Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 68].
Bluebird Cabs v. Guardian Insurance Co. of Canada (1999), 123 B.C.A.C. 280; 201 W.A.C. 280; 173 D.L.R.(4th) 318 (C.A.), refd to. [para. 69].
Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 74].
Hall v. Hebert, [1993] 2 S.C.R. 159; 152 N.R. 321; 26 B.C.A.C. 161; 44 W.A.C. 161, refd to. [para. 86].
Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 91].
Authors and Works Noticed:
Atiyah, Patrick S., Vicarious Liability in the Law of Torts (7th Ed. 1967), p. 149 [para. 37].
Husak, Douglas N., Varieties of Strict Liability (1995), 8 Can. J.L. & Jur. 189, p. 215 [para. 69].
Counsel:
Diane H. Soroka, Peter R. Grant and Allan Early, for the appellant/respondent, Frederick Leroy Barney and the respondents, R.A.F., R.J.J., M.L.J. and M.W. (2);
Mitchell R. Taylor and James M. Ward, for the appellant/respondent, Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development;
Christopher E. Hinkson, Q.C., and Bernard S. Buettner, for the respondent, the United Church of Canada;
David Paterson, for the respondent, Patrick Dennis Stewart;
Jack R. London, Q.C., and Bryan P. Schwartz, for the intervenor, the Assembly of First Nations;
Marie Elena O’Donnell, for the intervenors, the Women’s Legal Education and Action Fund, the Native Women’s Association of Canada and the Disabled Women’s Network of Canada.
Solicitors of Record:
Hutchins Grant & Associates, Vancouver, B.C., for the appellant/respondent, Frederick Leroy Barney and for the respondents, R.A.F., R.J.J., M.L.J. and M.W. (2);
Attorney General of Canada, Vancouver, B.C., for the appellant/respondent, Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development;
Harper Grey Easton, Vancouver, B.C., for the respondent, the United Church of Canada;
David Paterson Law Corporation, Surrey, B.C., for the respondent, Patrick Dennis Stewart;
Pitblado, Winnipeg, Manitoba, for the intervenor, the Assembly of First Nations;
Women’s Legal Education and Action Fund, Toronto, Ontario, for the intervenors, the Women’s Legal Education and Action Fund, the Native Women’s Association of Canada and the Disabled Women’s Network of Canada.
These appeals were heard on May 16, 2005, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.
On October 21, 2005, McLachlin, C.J.C., delivered the following judgment in both official languages for the Court.
