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 - v. –, 2018 NLSC 60

court crest 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 livingat 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 fullcontrol over the day to day management. They were also separate corporate entities.

Accordingly, the Archdiocese is not vicariouslyliable 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 uponreceipt of knowledge. There was insufficient evidence to find, on a balance of probabilities, that disclosures made in the confessionalraised a duty of care, or that nothing was done. Apart from speculation about what may have happened, there was insufficient evidenceto 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 evidencewas submitted was a memo written by the priest-assistant to the Archbishop in 1954. The evidence available indicated that there wasfollow-up by the office, and that was deemed sufficient under both the Canon Law governing the relationship between the Archbishopand 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), (BC SC),161 D.L.R. (4th) 538, 1998 CarswellBC 1745 (S.C.); and 2001 BCSC 997 (affirmed by the Supreme Court of Canada at 2005 SCC 58);C.(R.) v. McDougall, 2008 SCC 53; John Doe v. Bennett, 2004 SCC 17; Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534,1999 CarswellBC 1264; Jacobi v. Griffiths, (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; B.(K.L.) v.British Columbia, 2003 SCC 51; Broome v. Prince Edward Island, 2010 SCC 11; Doe v.

Brouillette (2009), 906 N.E. 2d 105 (Ill. App.Ct.); H.(H.) Estate v. Newfoundland & Labrador, 2010 NLTD 47; Dodd v. Society of the Love of Jesus (1975), (BCSC), 53 D.L.R. (3d) 532, 1975 CarswellBC 306 (S.C.); John Doe v. Bennett, 2002 NFCA 47; K.(W.) v. Pornbacher,

(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; R. v. Chase, (SCC), [1987] 2 S.C.R. 293, 1987 CarswellNB 25;Hanke v. Resurfice Corp., 2007 SCC 7; Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458, 1996 CarswellBC 2295; B.(M.) v. 2014052 Ontario Ltd., 2012 ONCA135; B.(B.P.) v. B.(M.M.), 2009 BCCA 365; G.(B.M.) v. Nova Scotia (Attorney General), 2007 NSSC 27; G.(B.M.) v. Nova Scotia(Attorney General), 2007 NSCA 120; Young v. Bella, 2006 SCC 3; V.P. v. Canada, 1999 SKQB 180; Curran v. MacDougall, 2006BCSC 933; Evans v.

Sproule (2008), (ON SC), 176 A.C.W.S. (3d) 895, 2008 CarswellOnt 8753 (Sup. Ct.); M.(D.) v. W.(W.),2013 ONSC 4176; Rich v. Bromley Estate, 2013 NLCA 24; C.(D.) v. C.(K.) (1993), (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; M.(K.M.) v. Roman Catholic Episcopal Corp. of the Diocese of London in Ontario, 2011 ONSC 2143; Shaw v. Staples, 2013 ONSC 3290;Langstaff v. Marson, 2013 ONSC 1448; John Doe v. O'Dell (2003), (ON SC), 230 D.L.R. (4th) 383, 2003CarswellOnt 3456 (Sup. Ct.); John Doe v.

Bennett (1999), (NL SC), 186 Nfld. & P.E.I.R. 131, 1999 CarswellNfld322 (S.C.T.D.) STATUTES CONSIDERED:

An Act to Incorporate the Roman Catholic Bishop of Saint John’s, 60 Vic. Cap. XVIII;

An Act toIncorporate the Roman Catholic Bishop of Saint John’s, 3 Geo. V. Cap.10;

An Act to Incorporate the Christian Brothers of Ireland inCanada, 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, theywere residents of the Mount Cashel Orphanage for varying periods of time from the late 1940’s until the late 1950’s.

They have claimeddamages for this abuse against The Roman Catholic Episcopal Corporation of St. John’s (the “Archdiocese”) and The Christian BrothersInstitute Inc. (the “Christian Brothers”). [2] The Archdiocese is the only remaining Defendant. The Christian Brothers did not participate in this trial, as bankruptcyproceedings in the United States have resulted in liquidation of its assets to attempt to satisfy the claims of those abused. The ChristianBrothers 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 theexperience 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 MountCashel Orphanage in St. John’s. The actions were commenced in 1999, but the circumstances date back some 60 to 70 years. ThePlaintiffs submit that the Archdiocese is liable for the sexual abuse they suffered and seek an assessment of the damages that would bepayable 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 somecontext for the evidence and the events which are the subject of the proceeding. Second, the Plaintiffs have asserted that the orphanagewas a joint venture between the Archdiocese and the Christian Brothers from the beginning.

It has pointed to collaboration between thetwo 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 specialtyhas been the history of the integration of the Irish settlers, colonial officials, and the Roman Catholic Church in Newfoundland.

Heoutlined 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 partof 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, in1784, the territory recognized by the Pope as a distinct church region, to be overseen by the Church in Quebec.

It wasn’t until 1829 thata 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”: 8 th 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 9 th 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 18 th 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 19 th 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 19 th 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 19 th 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 19 th and 20 th 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 , later affirmed by the Supreme Court of Canada at 2005 SCC 58 , 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 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 20 th 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 foundwhere there is, generally, an employment relationship, or other relationship involving supervision and control over the tortfeasor. In oneof the trial decisions in Blackwater v. Plint (1998), (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 oromission by another, 2) some relationship between the actual tortfeasor and the defendant whom it is sought to make liable, and 3) someconnection between the tortious act or omission and that relationship.

In the modern law there are three and only three relationshipswhich 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 thewrongdoer 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, 2004SCC 17, 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 ofthe employer or principal, but on the ground that as the person responsible for the activity or enterprise in question, the employer orprincipal 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, (SCC), [1999] 2 S.C.R. 534, 1999CarswellBC 1264 and Jacobi v.

Griffiths, (SCC), [1999] 2 S.C.R. 570, 1999 CarswellBC 1262 where the SupremeCourt of Canada revised the rationale for imposing liability without fault. These cases have significantly altered the field of vicariousliability in Canada.

The court moved from a fairly technical definition focused on the actions of the employee vis à vis the employer, toa policy rationale relating to operation and control over the enterprise, and whether the tortious act is connected with the operation of theenterprise 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 asmodes (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 rationalethat included a combination of compensation policy and operational control by the employer.

The problem with the old approach wasdescribed 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 attractsliability, 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 therespondent would have us do), or as an independent act altogether (as the appellants would suggest).

In such cases, how is the judge todecide 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 oftortious behaviour. On the first, it was apparent that the risk associated with conduct arising from an enterprise that an employer placesin the community should give rise to a reasonable prospect of compensation, as the employer is most able to spread the costs throughoutthe enterprise, perhaps through insurance or other mechanisms.

The second is the logical outcome of the observation that it is theemployer, 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, 1995CarswellBC 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 thosewho 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. TheSupreme Court in Bazley elaborated, at paragraph 34: 34. The policy grounds supporting the imposition of vicarious liability — fair compensation and deterrence -- are related.

The policyconsideration 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 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 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 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

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