2019 NLSC 33, 2019 NLSC 33

` court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : John Doe (G.E.B. #113) v. Canada (Attorney General) , 2019 NLSC 33 Date : February 8, 2019 Docket : 201101G4922 Between: JOHN DOE (G.E.B. #113) Plaintiff And: Attorney General of Canada Defendant And: C.M. Third Party Restriction on Publication: By court order dated July 19, 2011, information that may identify the Plaintiff shall not be published in any documents, broadcasted, or transmitted in any way.

AND: Restriction on Publication: By court order dated September 1, 2017, information that may identify the Third Party shall not be published in any documents, broadcasted or transmitted in any way. Before: Justice Deborah J. Paquette Place of Hearing: St. John’s, Newfoundland and Labrador

Date(

s) of Hearing: April 2-4, 2018; April 6, 2018; April 9-13, 2018; April 16, 2018; and April 18-20, 2018 Appearances: William A. F. Hiscock and Allison S. Conway Appearing on behalf of the Plaintiff Corinne Bedford and Sarah E. Drodge Appearing on behalf of the Defendant Jerome P. Kennedy, Q.C. Appearing on behalf of the Third Party Authorities Cited: CASES CONSIDERED: John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2018 NLSC 60; C.(R.) v.McDougall, 2008 SCC 53; R. v. Conway (2002), (NL SC), 218 Nfld. & P.E.I.R. 139, 653 A.P.R. 139 (N.L.S.C.(T.D.)); Turner v.

Newfoundland and Labrador (Legal Aid Commission), 2014 NLTD(G) 156; John Doe v. Bennett, 2004 SCC 17;Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534; Jacobi v. Griffiths, (SCC), [1999] 2 S.C.R. 570; JohnDoe v. Avalon East School Board, 2004 NLTD 239; Jane Doe v. M.N., 2018 NLSC 162; H.(S.G.) v. Gorsline, 2001 ABQB 163; JohnDoe v. Fifield, 2007 NLTD 195; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27; B. (K.L.) v. British Columbia, 2003 SCC 51; A.B.v. C.D., 2011 BCSC 775; Hanke v. Resurfice Corp., 2007 SCC 7; Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458;Clements (Litigation Guardian of) v.

Clements, 2012 SCC 32; G. (B.M.) v. Nova Scotia (Attorney General), 2007 NSCA 120; John Doev. O’Dell (2003), (ON SC), 230 D.L.R. (4th) 383, 125 A.C.W.S. (3d) 928 (Ont. Sup. Ct.). STATUTES CONSIDERED: National Defence Act, R.S.C. 1952, c. 184; National Defence Act, R.S.C. 1970, c. N-4; National DefenceAct, R.S.C. 1985, c. N-5; Criminal Code, R.S.C., 1985, c. C-46.

REASONS FOR JUDGMENT Paquette, J.: INTRODUCTION [1] The Plaintiff seeks damages against the Defendant in relation to allegations that he was sexually abused by a cadet officer inthe period 1969 to 1971 while a member of his community Royal Canadian Air Cadet Squadron[1] (“Squadron”). The Plaintiff has notsued the cadet officer who was added as Third Party by application of the Defendant. [2] The Defendant denies liability to the Plaintiff. The Third Party asserts that there was a consensual sexual relationship withthe Plaintiff unrelated to his position as a cadet officer.

ISSUES [3] At issue in these proceedings is whether the Defendant is accountable to the Plaintiff in negligence directly or as a result ofvicarious liability and if so, determination of an appropriate damages award. BACKGROUND [4] The Plaintiff is 62 years old, married and a father. He recounted a happy childhood with loving parents and close family ties. He participated in several extra-curricular activities before high school, including Boy Scouts.

At the suggestion of a neighbourhoodfriend, he joined cadets in the fall of 1969 at age 14, then a grade eight student, and left the organization in 1971. [5] The Third Party is 69 years old, married and a parent. He moved to St. John’s in 1960 when he was 12 years old and joinedair cadets when he was 16 years old. He testified that as a cadet he pursued training in leadership courses in Nova Scotia and Borden andeventually became an officer. In 1969, he had received his commission as a second lieutenant and by 1970, a substantive lieutenant.

Heheld the rank of lieutenant and took on the role of training officer at the Squadron at the time that the Plaintiff joined cadets. He

explained that at the summer camps, the positions called for captain status, so he had that rank on an acting basis while there. [6] The Third Party was 20 years old and in his third year of university training to be a teacher when the Plaintiff joined theSquadron. There was a six year and two months age difference between them. [7] The Plaintiff found air cadets to be a “step up” from scouting because the activities were more “military”; this pleased himbecause his grandfather and his uncle were veterans. Cadets was a good fit for him, and he looked forward to the meetings.

Paradenight was on Wednesdays, during which groups of seven to nine cadets would assemble for courses. He liked his cadet group because itincluded a couple of his friends. Saturday meetings were open format and the cadets could choose an activity such as floor hockey, tabletennis or band practice. No uniforms were required. He explained that once a month, the cadets practiced marching in the drill hall. TheSquadron was headed up by a captain and there were probably three lieutenants.

Each year, a cadet could increase his rank from corporalto sergeant, flight sergeant and then warrant officer. [8] The Plaintiff testified that he believed that he first spoke to the Third Party in October 1969 while sitting on a bench at therifle range and recalled that he might have initiated that conversation telling him that his sister had mentioned his name as her friend wasplanning to go on a blind date with him. The Third Party said that he remembered meeting the Plaintiff’s father in the fall of 1969 whenhe came to pick his son up at cadets, and they soon became friends.

He said that he had little contact with the Plaintiff at cadets becauseas training officer, he worked with the senior cadets. A photograph of cadets taken at the time presented the Third Party with the buildof a grown man and the Plaintiff appearing small and boyish. [9] Cadet meetings soon became a family affair for the Plaintiff as his father joined the Squadron as an instructor. The ThirdParty recalled that as the training officer, he had approached the Plaintiff’s father who worked in the automotive field and he agreed tohelp out.

He shared his expertise with cadets at the Wednesday night meetings, and a former cadet recalled that the cadets reallyenjoyed his instruction. The Plaintiff’s father remained with the Squadron from 1970 to 1980, long after the Plaintiff and the Third Partyleft. [10] Initially, the Plaintiff’s father drove him and his neighbourhood friend to the Wednesday meetings and another parentprovided transportation on Saturdays. On some occasions, the Plaintiff would find a ride home with others. He said that the Third Partylater offered him and other cadets a ride home with the consent of his parents.

The Plaintiff testified that his father was very impressedwith the Third Party who soon became a close family friend, visiting frequently at their home. The Plaintiff was on a first-name basiswith him at his parents’ house and whenever they socialized outside of cadets. [11] The evidence in this proceeding relates to events long past. Notwithstanding the lapse of time, the Plaintiff has the burden ofproving his case on the balance of probabilities. This is explained in John Doe (G.E.B. #25) v. The Roman Catholic EpiscopalCorporation of St. John’s, 2018 NLSC 60, at paragraph 61, citing C.(R. ) v.

McDougall, 2008 SCC 53: 61 In C. (R.) v. McDougall, 2008 SCC 53 (S.C.C.) the Supreme Court of Canada addressed the standard of proof in civil cases. JusticeRothstein 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 isproof on a balance of probabilities.

Of course, context is all important and a judge should not be unmindful, where appropriate, ofinherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do notchange the standard of proof. [12] Counsel also referred the Court to R. v.

Conway (2002), (NL SC), 218 Nfld. & P.E.I.R. 139, 653 A.P.R.139 (N.L.S.C.(T.D.)), at paragraph 5, which discusses credibility of witnesses generally: 5 As noted in Watt’s Jury Charges, PR-33, and in Ferguson and Bouck, Canadian Criminal Jury Instructions (2001 update), at4.12, in assessing the credibility and reliability of witnesses’ testimony, I should keep in mind, amongst other factors, the following: -Innocent discrepancies may arise in testimony but deliberate lies under oath may well taint the entire testimony of a witness. -When the evidence of witnesses relates to events that occurred in their childhood, the presence of inconsistences, such as thoserelating to time and location, should take into account the age of the witnesses at the time those events happened, even though when theytestify as adults, their credibility and reliability should be assessed according to standards applicable to them as adult witnesses. -Minor inconsistences may not diminish the credibility of a witness, but a series of inconsistencies may become quite significant andthe totality of the inconsistencies must be considered. -The testimony of witnesses with extensive criminal records involving crimes of dishonesty should be scrutinized with extreme careand it is unsafe to rely on such testimony, in the absence of other confirmatory evidence supporting it, as noted in R. v.

Vetrovec, (SCC), [1982] 1 S.C.R. 811 (S.C.C.).

-Evidence of friendly relations with the accused after an alleged sexual assault is a factor to be considered in assessing a complainant’s credibility. -Other general considerations include: • Was there something specific that helped the witness remember the details of the event described or was the event relatively unimportant so that the witness might easily be mistaken about some of the details? • Did the witness appear to have a good memory? • How did the witness appear when giving evidence? Was the witness forthright and responsive to questions?

Was the witness evasive, hesitant or argumentative with counsel? • Was the testimony of the witness reasonable and consistent or did the witness contradict himself or herself? • Was the witness’ testimony consistent with the testimony of other witnesses? • Was the witness impartial or did he or she have some interest in the outcome of the case? [ 13 ] LeBlanc, J. in Turner v.

Newfoundland and Labrador (Legal Aid Commission) , 2014 NLTD(G) 156 also addresses the civil burden of proof in the context of witness credibility at paragraphs 13 and 16: 13 Here, unless otherwise indicated, the civil onus of proof requires a consideration of what is it that is more probable than not, and not specifically any finding that a particular witness has not told the truth.

Professional reputations being as they are require me to make this comment. … 16 Generally speaking, again, in assessing credibility of all of the witnesses, I have considered their interest in the outcome of this case, their ability to know about the specifics of the evidence they referred to, the length of time that has passed since the relevant events, their own apparent biases, motives and beliefs and their actions at the time of relevant events and their ability and willingness to respond when giving their testimony.

Allegation of Sexual Abuse at Cadet Camp [ 14 ] The Plaintiff attended summer camp at Greenwood, Nova Scotia, in the summer of 1970. He was 15 years old. Approximately 500 cadets were in attendance, and he remembered military police going around in their jeeps, the swimming pool and gymnasium. [ 15 ] He testified that he was registered in a course for projectionist training taught by the Third Party and that he was housed in the barracks where two cadets shared a room.

He remembered that there was a duty officer in the barracks who would report you if you disobeyed the rules such as curfew. [ 16 ] The Plaintiff testified that the first sexual encounter with the Third Party took place one weekend night that summer in his barracks. He was asleep in his room and woke up to find the Third Party under the sheets, “coming off his penis.” He said that maybe it was a blow job or “hauling me off”. He described being “stunned” and smelled alcohol on the Third Party’s breath.

He knew the smell of alcohol because his grandfather and father sometimes would “swig” it in the morning to clear their throats. He said that he kept this to himself and did not know who he could talk to about it. [ 17 ] He testified that the Third Party came into his room at the barracks one more time that summer. He made him get out of bed and while standing in his underwear, lectured him about the importance of working on a speech that he had been assigned for public speaking, something the Plaintiff was avoiding.

He recalled that the Third Party got permission for him to keep his lights on after curfew in order to get it finished and told him that if he went home, he would disappoint his father. The Plaintiff finished the speech and read it out in class. By the end of camp, the Plaintiff qualified for his projectionist licence. When he returned home, he spent the rest of the summer at his parents’ cabin where he had a horse. When he returned to cadets in September, he held the rank of corporal. [ 18 ] The Third Party denied that any sexual activity took place at cadet camp.

He said that he and the Plaintiff had their first sexual

encounter in the spring of 1970, a few months before cadet camp, in the basement of his mother’s house where there was a rec room and his bedroom. He said it happened while they were wrestling—he noticed that the Plaintiff had an erection and he masturbated him. [ 19 ] In all, the Third Party estimated that he and the Plaintiff had sex approximately 15 times—always in circumstances where he would masturbate the Plaintiff. The Third Party testified that he always initiated the outings and sex.

He said that he never asked the Plaintiff to touch him, was never violent or threatening, and never gave the Plaintiff alcohol or drugs. He recounted that the Plaintiff never performed sex on him, he never exposed himself to the Plaintiff, and he never had an erection or derived any sexual gratification from their sexual activity. He admitted that he was pleased that the Plaintiff enjoyed the masturbation. He said that he enjoyed the Plaintiff’s company and felt that the Plaintiff enjoyed his company.

I find the Third Party’s characterization of the sexual activity with the Plaintiff to be contrived and devoid of credibility. [ 20 ] In addition to disputing the Plaintiff’s evidence that he had sexually abused him at camp, the Third Party also challenged the Plaintiff’s evidence that he took the projectionist course taught by him that summer. He said that he had no contact with the Plaintiff at the 1970 summer camp and that first-year cadets always stayed in the hangar together.

The Third Party testified that the Plaintiff took the projectionist course in his second year at Greenwood because cadets must complete basic camp before qualifying for specialized courses. Cadets who were enrolled in courses were generally assigned to the barracks. [ 21 ] The Third Party acknowledged visiting the Plaintiff at the barracks during second-year camp in 1971 for the purpose of encouraging him to prepare a speech for the mandatory public-speaking requirement. He recalled that he told the Plaintiff that he had to write the speech, but denied that it constituted an “order” from an officer.

He said that he went after supper, stayed between five to ten minutes and that there may have been another cadet in the room for at least a part of the time. He did not recall seeing the duty officer during that visit. He also denied telling the duty officer that the Plaintiff could have extended curfew in order to finish his speech. [ 22 ] External evidence supported the Plaintiff’s testimony in relation to the timing of the projectionist course.

The Squadron newsletter of the time published the names of two other cadets who completed the projectionist course in 1971 and one of them was a first year cadet, contradicting the Third Party’s evidence that only second-year cadets could take the course. I accept the Plaintiff’s evidence that he took the projectionist course taught by the Third Party in the summer of 1970, and that he stayed in the barracks. [ 23 ] Overall, I did not find the Third Party’s evidence in relation to the 1970 camp at Greenwood reliable.

He was wrong about when the Plaintiff took the projectionist course and where the Plaintiff stayed that summer. The Plaintiff’s description of the sexual abuse also raises concerns. This is because inherent improbability arises in accepting that the Plaintiff, then 15 years of age, would have been so deeply asleep that the Third Party, a fully-clothed 21 year old, could have entered his barracks’ room, got into bed with him, retreated under the covers, removed the Plaintiff’s underwear and was in the process of performing oral sex on him, before the Plaintiff woke up.

This would have occurred in an environment where there was supervision at the barracks, possibly a roommate and other cadets in rooms nearby. [ 24 ] The Third Party’s credibility in denying the incident is also impacted by his testimony that he initiated sex with the Plaintiff solely for the Plaintiff’s benefit as he never experienced any sexual gratification from it and that he never encountered the Plaintiff that first summer.

The Third Party admitted that a sexual relationship with the Plaintiff had commenced two months earlier. [ 25 ] Weighing the evidence of both, I am satisfied on a balance of probabilities that the Third Party initiated sexual touching while they were together in the barracks and I find that the Plaintiff was sexually abused at the Greenwood Camp. The Plaintiff has also failed to establish intoxication. In so finding I do not suggest that the Plaintiff intentionally fabricated his evidence, but I am persuaded that the passage of time has impacted upon his recollection.

Subsequent interactions during the Plaintiff’s tenure as a cadet [ 26 ] The following summarizes the evidence of both the Plaintiff and the Third Party relating to their subsequent interactions. [ 27 ] The Plaintiff resumed cadets in the fall of 1970, and the Third Party continued to be the training officer for the Squadron. The Plaintiff’s brother was born that fall, and the Plaintiff’s parents asked the Third Party to be his godfather.

The Third Party said that he continued to spend a lot of time at the Plaintiff’s home and that he was also close with the Plaintiff’s sister, estimating that he was at their home weekly. [ 28 ] The Plaintiff owned a motorcycle by second year of cadets, recalling that his classmates, who were mostly a couple of years younger, were still riding bicycles. He described being bigger then and would help out his parents by staying overnight with an elderly relative who lived nearby.

He was also holding down part-time jobs after school and remembered falling asleep at school one day because he had worked a night shift. [ 29 ] The Third Party and the Plaintiff spent a lot of time socializing together outside of cadets with his parents’ approval. The evidence revealed that the Third Party, his girlfriend and the Plaintiff went to a basketball game together. The Third Party worked part- time at the university, setting up audiovisual equipment for professors and the Plaintiff sometimes went with him.

During the school year 1970 and 1971, the Plaintiff went to the Third Party’s house from time to time and mowed his mother’s lawn. The Plaintiff said that he liked the Third Party’s mother and would sometimes stay at her house even when the Third Party was out socializing. The Plaintiff and the Third Party spent time together collecting rent for apartments owned by the Third Party’s father who frequently travelled, and he would sometimes accompany him when he helped out with his father’s wholesale business.

The Plaintiff and the Third Party would go out for fast food. [ 30 ] The Plaintiff had struggled academically, failing grades six and eight before joining cadets. His mother encouraged him to seek help with his school work from the Third Party, and they would study together at the Third Party’s mother’s house which was nearby. His mother was impressed by the fact that he was at university training to be a teacher.

The Third Party continued to visit the Plaintiff’s family during this timeframe. [ 31 ] The Plaintiff also testified that with his father’s permission, the Third Party accompanied him and three other cadets to the

family cabin after the Saturday cadet meeting. They stayed overnight, for a total of maybe three excursions in all. The Third Party testified that the time at the cabin was social, no one wore uniforms, there were no organized cadet activities, and he never asked the commanding officer’s permission to go.

The Plaintiff made no allegations of inappropriate sexual activity by the Third Party during any of these outings or other cadet outings or at any cadet meetings. [ 32 ] Once after studying together at the Third Party’s mother’s house, he said that the Third Party left to go out for a while and when he came back, he bent the Plaintiff over the bed and rubbed himself against his body in the simulation of a sexual act. The Plaintiff’s family home was nearby. The Plaintiff never testified that he was ordered to stay at these times or that he was threatened in any manner if he did not.

The Plaintiff never initiated sex with the Third Party. [ 33 ] The Third Party stated that he did not know if the commanding officer knew about the Plaintiff’s visits to his mother’s house, but that he would certainly have known that the Third Party was a close friend of the Plaintiff’s father. The Third Party never invited other cadets to his mother’s house. [ 34 ] The Plaintiff returned to summer camp at Greenwood the following year, 1971. He did not take a specialized course that summer, so was housed in the hangar with the large group of cadets. He said he enjoyed camp.

The Third Party was again an officer at Greenwood camp, but the Plaintiff did not interact with him except that he recalled that when he sustained a softball injury the Third Party asked how he was doing. There was no allegation of inappropriate sexual activity. [ 35 ] After one of the Greenwood camps, likely the second, and with his parents’ approval, he went on a road trip with the Third Party to visit the Third Party’s sister in Halifax. He said that his mother, in particular, thought that the trip would be a good experience for him.

He testified that while the plan had been a visit to Halifax, the Third Party decided to also travel to the United States and forced him to perform oral sex while he was driving by placing his hand on his head. He said that he was sickened by this. The Third Party had a different recollection of this trip. He said that after camp, they went to Halifax and then New York but due to car problems, returned to the province. He said that sex occurred only once on that trip, with him masturbating the Plaintiff.

He acknowledged that the trip to New York had not been cleared with the Plaintiff’s parents but said that the Plaintiff later filled them in and they were not concerned. I conclude that the Third Party’s denial of oral sex by the Plaintiff is fabricated to support his position that he never received any sexual gratification. [ 36 ] The Third Party testified that after the initial sexual encounter with the Plaintiff in the spring of 1970, they again had sex at his mother’s house—five or six times—and that sex occurred sometimes when they would be out driving, and he would pull his car over to the side of the road.

He said that the Plaintiff was cooperative and afterwards, they would have friendly conversation and that he never appeared afraid. The Third Party testified that he knew the sexual activity was consensual because the Plaintiff always “came back” after these events and never expressed any ill-feeling towards him, and they never argued. He said that they never had sexual contact at cadets’ summer camp at Greenwood or at any cadet activity. He denied that the Plaintiff would be at his mother’s house while he was out, waiting for him to return.

I do not accept the Third Party’s evidence that consent by the Plaintiff was evidenced by the fact that the Third Party continued to perform sexual acts on him. The Third Party took advantage of the Plaintiff for his own sexual gratification. [ 37 ] The Third Party testified that the Plaintiff’s parents were fully aware and supportive of their personal friendship and that the age difference was not a concern for them.

When questioned by the Plaintiff’s lawyer, the Third Party stated that he did not consider the close friendship he shared with the Plaintiff’s father to be incompatible with the fact that he was engaging in sexual activity with his son, then in his mid-teens. He explained that he and the Plaintiff had an attraction to each other, and it did not seem odd to him at all that they were sexually involved. Interactions between the Plaintiff and Third Party after the Plaintiff left Cadets [ 38 ] The Plaintiff quit cadets in September 1971. He was 16 and had been promoted to sergeant.

He explained that he was driving a motorcycle and that his interests took “another direction”. He continued to spend time with the Third Party after he left cadets. They sometimes interacted on the weekends at the Third Party’s mother’s house. He testified that he once stayed overnight and was in the Third Party’s bed when the Third Party came home late from a club and he ended up having to perform oral sex on him.

He said that on another occasion, they were wrestling and the Third Party put him on the bed and masturbated him. [ 39 ] The Third Party moved out of town to work in 1972 following his graduation from university. The Plaintiff was then 17 and had his driver’s licence and said that the Third Party would occasionally let him drive his car. The Plaintiff testified that the last sexual incident occurred there. The Third Party had gone out with friends and when he returned to his apartment, he got in bed with the Plaintiff and kissed him, which was revolting to the Plaintiff.

The Plaintiff testified that this was the last sexual incident and that it occurred in 1973 when he was close to 18 years of age. [ 40 ] The Plaintiff said that on one occasion during this timeframe, the Third Party invited his sister to a graduation and he also arranged a date for the Plaintiff. The Third Party recalled inviting the Plaintiff’s sister, but could not remember the Plaintiff being there. During the Third Party’s first job as a teacher, the Plaintiff helped him run wires for the public announcement system.

The Third Party invited the Plaintiff’s parents to travel once to see a school performance, and the Third Party’s mother was there too. The Third Party said that he met his wife during the summer of 1972, and they once visited the Plaintiff’s family at their cabin. [ 41 ] The Plaintiff left high school in 1974, without graduating, because he did not pass the required mathematics’ courses. He had a car and would sometimes visit the Third Party.

The two kept in touch, and the Third Party was invited to his wedding in 1977. [ 42 ] After the Plaintiff had children, he would sometimes visit his parents’ cabin on Sunday and remembers a time when the Third Party and his wife dropped by. [ 43 ] When the Third Party became engaged, he invited the Plaintiff and his wife out with him and his fiancée for a special dinner. The Plaintiff recounted in his evidence that this was an enjoyable evening. The Plaintiff and his wife were also invited to the Third Party’s wedding in 1978. The couple moved out of province the same year.

The Plaintiff’s sister kept in touch with the Third Party and visited him in the mid-1980s. Whenever the Third Party and his wife visited the province after they had moved, they would visit the

Plaintiff’s parents and especially his sister. The Third Party estimated that over a period of 10 to 15 years, he saw them about 4 or 5 times. [ 44 ] The Plaintiff contacted the Third Party many years later to ask for his advice about a business venture he was pursuing after leaving his long-term employment. [ 45 ] In 2000 or 2001, the Plaintiff telephoned the Third Party asking that they arrange to meet, mentioning in that call that he had been seeing doctors and wanted to talk. The Third Party said that he “figured” that the Plaintiff was seeking closure in relation to their previous sexual activity.

He was visiting the province in the summer, and they agreed to meet then. The Third Party testified that he came right out and said that if he had harmed the Plaintiff, he was very sorry and sought his forgiveness. He referred the Plaintiff to the Alcoholics Anonymous’ “12 steps” which he had found useful in the ten years that he was involved in that program. One aspect of the 12 steps was making amends, and the Third Party testified that it had been his wish to make amends to the Plaintiff and achieve closure for them both.

They talked for about an hour and at the end, he said that the Plaintiff told him that he forgave him. The Third Party had no further contact with the Plaintiff until he learned of the court proceedings in a call from the Attorney General’s office in 2014. [ 46 ] The Plaintiff recounted that while he had wanted closure, when the Third Party started talking about the 12 steps, it felt like he was teaching him again and he called it off. [ 47 ] Several years later in 2010, the Plaintiff watched an episode of The Oprah Winfrey Show featuring male sexual abuse survivors.

He described “losing it”, breaking down in tears. It was then that he told his wife, sons and doctor that the Third Party had sexually abused him. He also told his mother who responded by saying that it struck her as odd and that she did not want the Plaintiff to hurt the Third Party’s children. His sister responded in a similar fashion. [ 48 ] The Plaintiff testified that everything changed when saw The Oprah Winfrey Show . He joined a male sexual abuse survivor online group and testified that if he had money to do so, he would visit therapeutic places featured on the program for survivors of sexual abuse.

Overview of the Cadet Organization [ 49 ] The pertinent legislative provisions relating to the establishment of cadet organizations are

section 44 of the National Defence Act, R.S.C. 1952, c. 184 and

section 43 of the National Defence Act , R.S.C. 1970, c. N-4. The 1970 legislation, reflecting unification provided: 43.

(1) The Minister may authorize the formation of cadet organizations under the control and supervision of the Canadian Forces to consist of boys not less than twelve years of age and who have not attained the age of nineteen years.

(2) The cadet organizations mentioned in subsection (1) shall be trained for such periods, administered in such manner, provided with materiel and accommodation under such conditions and shall be subject to the authority and command of such officers as the Minister may direct.

(3) The cadet organizations mentioned in subsection (1) shall not be comprised in the Canadian Forces. [ 50 ] Lt. Cdr. Marilyn Kieley represented the Government of Canada and the Department of National Defence. She is the officer in charge for the Newfoundland and Labrador area for the Regional Cadet Support Unit Atlantic and she oversees cadet training in Newfoundland and Labrador. She was referred to a Background Information document in relation to the cadet program in place at the relevant time.

It described the organization’s aims and purposes: 1) to encourage air cadets to develop the attributes of good citizenship; 2) stimulate their interest in aviation and space technology; and 3) develop a high standard of physical fitness, mental alertness and discipline. She explained that the cadet program is a youth development program and not a recruitment program for the Department of National Defence. She stated that the years 1969-1970 were right on the cusp of the cadet organization’s change from training further Canadian Forces’ members to developing community leaders and good citizens. [ 51 ] Lt. Cdr.

Kieley stated that standing orders would have been in force at the time the Third Party was an officer. She said that standing orders are normally issued under the authority of a commanding officer of each cadet core squadron. No records were located from this time period particular to the operation of the Squadron. The local standing orders supplement the national cadet program orders. These were known as the Canadian Forces Administration Orders (“CFAO”) and applied to all members of the Armed Forces and were made by the Department of National Defence at the national level.

At the relevant time, the standing orders and CFAO would have been located in hard copy at the Squadron. [ 52 ] CFAO 49-6 addressed cadet instructors and would have been applicable to the Third Party. The “Responsibilities of the Training Officer” at the time were: 1) developing the training plan in accordance with the established training directives; and 2) maintaining and updating the training records. Lt. Cdr.

Kieley explained that the training officer interacts primarily with senior cadets who teach junior cadets. [ 53 ] The evidence established that there was an unexpected influx of new cadets in the period 1969-1970. Lt. Cdr. Kieley explained that the growth in cadet numbers would directly impact on the Third Party’s role as a training officer. It meant he would have been particularly busy dealing with senior cadets and revising his training

schedule and would have minimal interaction with junior cadets. The Third Party had described his duties as a training officer in a similar fashion. [ 54 ] Once cadets complete four years of training, in their fifth year they are qualified to teach junior cadets. A major part of the cadet program is peer-to-peer teaching. These senior cadets and other civilian instructors teach the routine classes of cadet meetings. Lt.

Cdr. Kieley said that the Third Party as a training officer would have been responsible for interacting with the senior cadets. [ 55 ] The CFAO also dealt with officer discipline. CFAO 19-20 addressed sexual deviation: “Immediately a person becomes aware or suspects that a member of the Canadian Forces is a sexual deviate, he shall report the matter to the Commanding Officer.” Lt. Cdr.

Kieley stated that a senior male officer having a sexual relationship with a cadet would be sexual deviation pursuant to CFAO 19-20 and that such behaviour would be considered scandalous. [ 56 ] She testified that the first reported case of sexual abuse in the cadet organization was made in 1987. This led to enhanced reliability checks for leaders.

She explained that the current screening and supervising of officers is very stringent with officers and civilian instructors now going through the Canadian Forces recruiting centres. [ 57 ] The basic enrollment standards as listed in CFAO 49-6 were to “complete application, answer the criminal records questionnaire and be of good character”. Lt. Cdr. Kieley reviewed the Third Party’s personnel file and stated that nothing presented as a “red flag” to have prevented him from becoming an officer as he met the enrollment standards of the applicable timeframe.

The Third Party had previously been an officer cadet and an instructor. [ 58 ] The Plaintiff’s counsel advanced that the Third Party misled the cadet program in the manner in which he completed his application form. A question asked, “State the civilian occupation in which you consider you are most proficient.” The Third Party’s response was “Teacher”. When asked “Name the business address of current employer”, the Third Party responded “Memorial University (student)”. Lt. Cdr.

Kieley stated that this information met the standards then and now for acceptance in that it is not necessary to have a university degree. I reject the Plaintiff’s argument that the Third Party attempted to mislead the organization. The criminal records questionnaire was not located in his file and no references were listed or noted to have been checked. Lt. Cdr. Kieley stated that they may not have been contacted in that era. [ 59 ] At the relevant time period, there was no national training program for officers, which is now mandatory. Lt. Cdr.

Kieley stated that there may have been ad hoc regional training in the period 1968-1975. There was nothing in the Third Party’s personnel file to indicate that he had received training and Lt. Cdr. Kieley was not surprised by this. [ 60 ] Lt. Cdr. Kieley reviewed the cadet “Year-end Review 1969-1970” which included quotes from the commanding officer: I feel that the only way to keep the cadets involved means that you must have a staff who are willing to get involved with them, not only on parade nights but also on weekends and holidays and extracurricular activity.

In addition to the squadron field exercises, groups of cadets spent weekends together in their parents’ cabins in the country throughout the year. [ 61 ] When asked if fraternizing between cadets and officers should have been discouraged in the 1960s and 1970s, Lt. Cdr. Kieley stated she could not confirm whether this was the case, because it may well have been the norm at that time. She explained that societal norms were different then, and parents may have welcomed the mentorship of officers.

She further explained that policies existed at the local level, and she has not seen a policy from that time prohibiting this. Lt. Cdr. Kieley stated that an overnight outing with cadets at a parents’ cabin today would have to be expressly sanctioned by the lieutenant commander; and if approved, would be considered a cadet activity. [ 62 ] There was no evidence presented in these proceedings or any allegation made by the Plaintiff that any sexual abuse ever occurred during the excursions to his parents’ cabin.

Nothing in the record indicated that anyone in the cadet organization, including the Plaintiff’s father, knew about the sexual relationship between the Third Party and the Plaintiff. There was no evidence that the Third Party was known to be a person of bad character. [ 63 ] The Squadron newsletter also indicated that the Squadron had been awarded “top squadron” in the 1971 summer training. This award meant that they had been recognized as the top group by the league’s officials in Newfoundland and Labrador. It was explained by Lt. Cdr.

Kieley that this reflected well on the officers at the Squadron who oversaw training. [ 64 ] Lt. Cdr. Kieley did not know if cadets were ever informed of their personal rights in 1969, 1970 or 1971. [ 65 ] Lt. Cdr. Kieley explained that receiving “orders” and “instruction” is a routine part of being a cadet, and she considered that the Third Party would have given orders in his capacity as a training officer. For his part, the Third Party said that he never gave orders to cadets because that was the job of their flight sergeant and flight corporal.

He testified that he was never in charge of the Plaintiff’s particular “Flight” and never dealt with the Plaintiff “as a cadet”. I am satisfied that the Third Party would have provided orders to the senior cadets, in particular, in relation to the instruction they were to provide. The Plaintiff did not testify that he was ordered to do anything at cadet meetings by the Third Party. The Plaintiff’s evidence relating to “orders” from the Third Party was limited to completion of the public speaking assignment while at Greenwood.

I accept the Plaintiff’s evidence that he would have considered this to be an order. [ 66 ] The Third Party said that he was never told that fraternizing with young cadets outside of the meetings or engaging in sexual activity with them was prohibited. I am satisfied that the Third Party knew that a sexual relationship with a cadet was prohibited. This testimony further erodes the Third Party’s credibility. [ 67 ] G.D. was a cadet during the Plaintiff’s tenure, having joined the Squadron in 1969 when he was 13 years old and ultimately became an officer in 1977.

He continued with the cadet organization for over 40 years and is currently a captain. He knew the Plaintiff and recalled that the Plaintiff’s father was a cadet leader. He could only vaguely remember the Third Party, testifying that, in general, officers did not have a lot to do with the cadets because the cadets ran the program.

[ 68 ] G.D. also attended the summer camp at Greenwood in 1970 and was assigned to the hangar with 300 or more cadets. He said that the Squadron’s commanding officer was at the camp and at one time became camp commanding officer. He recounted that there was an orderly room where you could go at any time if you had a problem and its availability was explained to all cadets at the opening of camp. The orderly room was not limited to medical issues but was there to redress any situation.

In addition, chaperones supervised the hangar after supper and a curfew was imposed at 10:00 p.m. [ 69 ] He stayed in the barracks in 1974 when he was employed with the glider school and stated that there was supervision in the barracks as well. He was not aware of officers spending time with cadets outside of cadet activities at camp, and he had never heard any rumours about the Plaintiff and the Third Party. [ 70 ] G.N. joined the Squadron as a cadet in September 1968, and he also recalled that first year cadets did not interact with officers.

He remembered that sports and band were popular at the Squadron and they developed a wrestling team. He remembered the Third Party being there when he was a first year cadet. [ 71 ] He recalled that they always had parade instruction on Wednesday nights. A couple of the officers, including the Third Party, taught the cadets who had done courses, how to teach the program to the junior cadets. There were two such classes every Wednesday.

As for the Saturday sessions, four squadrons did intramurals there and had tournaments. [ 72 ] G.N. attended summer camp at Greenwood in 1969 and 1970 and said that supervision was stricter than at meetings. In 1969 he did the two-week projectionist course using an 8 mm projector which was used for films back at the Squadron. In 1970 he took the two-week physical recreation course at Greenwood.

He recalled that neither the Plaintiff nor the Third Party were at camp in 1969 but both were there in 1970 along with the Squadron’s commanding officer who had a special appointment at Greenwood for the whole summer. [ 73 ] G.N. was housed in the hangar in 1969 and said that corporals would do patrol or supervision. In 1970, he was housed in the barracks, explaining that everyone in courses were assigned to the barracks.

He said that boys came from all over the Atlantic Provinces. [ 74 ] He recalled that cadets did not have much interaction with officers at the camp, other than in the courses, which were also often taught by Armed Forces’ personnel. [ 75 ] Years later he shared an apartment with the Third Party, then an acquaintance, for six months. Each of them had jobs, and the Third Party was then dating his future wife. [ 76 ] He knew the Plaintiff, who joined after him, and his father who was also an instructor at the Squadron.

He was a year older than the Plaintiff and said that they did not hang around together, but they knew and liked each other. He knew that the Plaintiff had done the projectionist course in 1970 but could not recall seeing him around that summer. [ 77 ] G.N. was aware that the Third Party drove the Plaintiff home from cadets. He also knew that the Third Party was responsible for the Plaintiff’s father’s involvement and was a family friend. He recalled that the Plaintiff’s father’s contribution to cadets was appreciated.

G.N. could not remember receiving any guidance or instruction on sexual assault in 1969 or early 1970 at either school or cadets. Plaintiff’s Employment and Family Life [ 78 ] The Plaintiff was 19 when he finished school in 1974. He went to the employment centre everyday looking for work and eventually secured an interview with the federal government and was hired. His work took him out of town nine months of the year. He had no relationships at that time and recalled learning a lot and being a “pretty good worker”.

He testified that his personal outlook at the time was to learn all that he could and, in his words, “up the chain I go!” He recalled being known as a bit of a “joker” at work. The Plaintiff testified that he felt he could have run his workplace as “head honcho”. He met his wife in 1975, they married, and had two children. [ 79 ] The Plaintiff testified that he worked around the clock and wanted to become a supervisor. A supervisor position was important to him because it would have permitted him to be home with his sons.

He arranged a meeting to follow up on this goal but said that things never progressed as they should have. He recalled preparing for the meeting when the official he was to meet denied that their meeting had even been scheduled. He testified that he “lost it” when this occurred. [ 80 ] The Plaintiff’s dissatisfaction with what he perceived to be unfair treatment in his employment was evident throughout his testimony. He said that he had worked so hard all those years and never got “anywhere”. He felt that he had helped advance the careers of others who ended up getting the better job instead of him.

He said that he trained people so well that they were promoted above him, when in fact he could have “run” the place. He attributed this to others ingratiating themselves with their superiors, something he never did. He felt that he had a lot to offer and had even developed a promotional video, but management were just not interested. [ 81 ] The Plaintiff said he reached the point where he could no longer travel by air to the offsite locations. As a result, he refused to board a scheduled flight, causing the helicopter to leave without him and his supervisor was contacted.

It was around this time that his employment came to an end (1989). He remembered telling his wife that he was “losing it”. He was referred to a psychiatrist in relation to this anxiety, and he prepared the insurance paperwork to make a benefits’ claim. He did not reveal sexual abuse allegations at that time. [ 82 ] The Plaintiff testified that he had to “battle” with his former employer and the insurers over his entitlement to certain benefits when he left.

He experienced mood swings with outbursts which impacted his family life and his relationship with his wife became strained. [ 83 ] The Plaintiff eventually agreed to a payout of his pension and embarked upon a private enterprise initiative related to his video recording expertise. He purchased over $20,000 of equipment, using pension funds and also took out a line of credit. Unfortunately, the

business initiative did not succeed, and he testified that he lost a lot of money due to the actions of a business partner who “stabbed him in the back.” He later set up another business venture which never took off. [ 84 ] He eventually found employment doing restoration work. He testified that he was laid off from this job in 2009 because he would not agree to his employer’s request that he take time off at Christmas without pay. He stated that his employer had “stabbed him in the back” and he told him that if he did not given him a T4 Form he would report him.

He has not worked since. [ 85 ] To compound matters, the Plaintiff’s father died during this difficult period in his life, and he deeply regretted that he had not told him that he had been sexually abused by the Third Party. [ 86 ] Dr. Jardine was the Plaintiff’s family physician since 1986. His first visit was in relation to severe anxiety “induced by his immediate supervisor”. He had been referred by a previous general practitioner to a psychiatrist, Dr. Kashyap, as a result of a similar work-related anxiety. Dr.

Jardine said that the Plaintiff had reported anxiety while working in isolation and that his supervisors were not supportive to the point that he could no longer work in that field. In 1990 Dr. Jardine communicated with the Plaintiff’s employer, informing that the anxiety the Plaintiff was experiencing was also evident in other employees in the workplace and that they were being treated for “stress reaction related to the supervisor in his branch …”. Dr.

Jardine advised the employer that the Plaintiff should “leave work or find some other alternative employment.” He referred to a psychiatric assessment which had been completed by Dr. Craig who determined that the Plaintiff suffered from job-related stress, and he suggested a change of career, avoiding isolated work. Dr. Jardine concluded by stating his opinion that the Plaintiff had “job induced anxiety neurosis” and recommended that he return to active work but in a different capacity and under a different supervisor. Dr.

Jardine further wrote: “In January 1989 the stress anxiety had become so severe that I felt [Plaintiff] was having thoughts of persecution by his supervisors and advised him to remain off work. Since then [Plaintiff] has done well and when he is away from his work place, shows no feelings of persecution or anxiety.” [ 87 ] The Plaintiff’s medical chart reflected that in 1997 he saw Dr. Jardine for anxiety problems associated with a business venture and he had reported losing his pension money to a business partner. He later suffered acute anxiety in relation to his father’s death in 2000.

In 2002 he reported anger respecting his last job experience. [ 88 ] Dr. Jardine treated the Plaintiff for depression but the medication did not help him, so he referred him to a psychiatrist, Dr. Walsh. He told Dr. Walsh that he wanted a second opinion on management. In 2003, Dr. Walsh diagnosed the Plaintiff with bipolar condition, finding that his mood elevations were consistent with manic depression which should be treated with lithium. Dr.

Walsh’s correspondence stated that the Plaintiff had described a past history of sexual abuse. [ 89 ] In 2007 the Plaintiff was reporting problems with his relationship with his wife. Throughout the medical file are references to his work-related anxiety. [ 90 ] The Plaintiff did not tell Dr. Jardine about the sexual abuse until 30 November 2010. Dr. Jardine testified that he had not recalled the reference to this in Dr. Walsh’s 2003 correspondence. Dr.

Jardine stated that on reflection, the Plaintiff’s stress could be explained as attributable to the sexual abuse he experienced from the ages of “12 to 17” and he expressed concern. The Plaintiff was taken off lithium in December 2014 and Dr. Jardine said that he no longer believes that he suffers from bipolar condition. [ 91 ] Dr. Jardine said that he now considers that the Plaintiff is suffering from post-traumatic stress disorder (“PTSD”). Despite his care of the Plaintiff for over 30 years, Plaintiff’s counsel submitted that Dr.

Jardine’s evidence provided little evidentiary value for the Court which should instead accept the evidence of clinical psychologist, Dr. Cunningham. [ 92 ] Dr. J. Cunningham is a clinical psychologist with expertise in trauma and PTSD including adults who were sexually abused as adolescents. He was asked to assess the Plaintiff in 2013 by his legal counsel following the commencement of this litigation for purposes of preparing a Report. He also saw the Plaintiff again in 2017.

He provided 2 reports to the Court in which he concluded that the Plaintiff exhibited all the symptoms of PTSD, consistent with a survivor of sexual abuse and that he required intensive psychotherapy over many years in order to recover. His Report stated that the factual events were drawn from an extensive transcript of the Plaintiff’s testimony to his legal counsel and from interviews he had with the Plaintiff. [ 93 ] Dr. Cunningham was not informed that the Plaintiff quit cadets at 16 and continued to visit the Third Party thereafter.

Nonetheless, he said this did not change his opinion because he was satisfied that the Third Party had a psychological dominance over him and testified that molesters will threaten their victims that something will happen if they tell. The Plaintiff never testified concerning any threats made to him by the Third Party not to disclose sexual activity. Dr. Cunningham was also unaware that the Plaintiff had not sued the Third Party or had alleged that he was sexually abused by another individual. He also did not know that the Plaintiff had failed two grades in school before joining cadets.

This was pertinent in that his Report stated that the Plaintiff purposely did not do well in school because he did not want to be seen as an exceptional student and as a result, attract abusers. He also stated that the Plaintiff told him that he held back at work for the same reason. The Plaintiff’s evidence at trial was markedly different. The Plaintiff testified with confidence that he could have “run” his workplace and actively pursued a supervisor role. He was ambitious and hoped to introduce a promotional video he had developed.

He decided to forego an alternate federal work placement, preferring instead to embark on business ventures in the video recording field. There were other statements of fact relied upon by Dr. Cunningham in his Report which were inconsistent with the Plaintiff’s own evidence at trial. For example, his Report stated that the Plaintiff was “directed to spend weekends” at the Third Party’s home while his parents “vacationed at the family cabin”; that he was forced by the Third Party to perform chores, such as mowing his mother’s lawn; and that he was threatened to perform sexual acts with the Third Party.

The Plaintiff’s own evidence at trial contradicted this evidence. His review of the medical opinions provided over the course of 30 years, including those of three psychiatrists, was not clearly explained. [ 94 ] Dr. Cunningham also concluded that the Plaintiff’s PTSD precluded friendships and relationships. The Plaintiff’s own testimony also dispelled this statement. He was happily married, a proud father and recounted friendships. He testified that he left cadets because his interests “took another direction”. He recalled that he had a “great time” at the second Greenwood camp. [ 95 ] Dr.

Cunningham also reported that the Plaintiff was never in conflict with anyone. This was also contrary to the Plaintiff’s evidence at trial that he made it clear that he was unhappy with the failure of his employer to meet with him concerning advancement to

supervisor and he challenged a subsequent employer’s request that he take time off at Christmas without pay. [ 96 ] While Dr. Cunningham’s clinical expertise in his area of practice is not challenged, the significant inconsistencies in the factual events upon which he premised his psychological analysis, measurably impacts upon the weight which can be given to it. [ 97 ] Dr. Neil is a clinical psychologist with expertise in PTSD and cognitive assessment. The Plaintiff met with her in 2013 so that she could undertake a cognitive clinical report to be provided to his legal counsel.

She estimated that the Plaintiff’s pre-trauma level of cognitive functioning fell below average range based on his current sight-word reading ability (10 th percentile). His verbal and visual- spatial reasonings were higher, in the low average to average ranges. She considered that his ability to learn and remember new verbal information was compromised compared to his other memory testing and that this could be due to PTSD.

She acknowledged on questioning that she did not consider the impact of learning disabilities or have his school records but indicated that they can assist with baselines for premorbid assessment. At trial she was unable to affirm that the sexual abuse was the reason for the decline in his functioning. She said that it is not uncommon for those who experience trauma to function but then experience a triggering event which can act as ammunition for that trauma event to bother that person more. [ 98 ] Mr. Sean Fitzgerald is a certified vocational evaluator.

He prepared a vocational assessment report dated 30 August 2017 at the request of the Defendant. He was asked to provide an opinion on whether the Plaintiff’s employment has suffered as a result of the sexual abuse as well as whether other factors in his life could have affected his employment and employability. [ 99 ] He stated that if Dr.

Cunningham’s opinion that the sexual abuse limited his educational and occupational opportunities is categorically accepted, the sexual abuse had a material impact on the Plaintiff’s employment and employability since early 1989 resulting in a partial loss of income. [ 100 ] Mr. Fitzgerald considered that the Plaintiff’s academic difficulties limited his opportunities for advanced education. He noted that the Plaintiff had relied upon work stress which had been experienced by others at his employment, in seeking disability benefits. He could find no medical link to sexual abuse impeding his employment.

This is because from a vocational perspective, he determined that work place stressors were applicable or contributed to his employment difficulties. He wanted a job at home so that he would not worry about his sons. He was found to be fit for jobs which did not include isolation in the Health and Welfare Canada General Physical Examination Report dated 19 January 1990.

This was consistent with the opinion of his general practitioner. [ 101 ] He determined that from a vocational perspective the Plaintiff demonstrated the capacity to be gainfully employed as evidenced by his ability to attempt business ventures and his ability to work for a private sector company. He had demonstrated that he could earn income over the minimum wage when working for others. [ 102 ] In the preparation of his vocational assessment report, he obtained information from the Plaintiff and from his employer. He also reviewed the medical reports.

He noted that the Plaintiff had been offered “the opportunity to consider other jobs in the Federal Public Sector”. He quoted a letter dated 21 May 1991 from his employer to the Plaintiff: “Additionally, you have indicated that you are not interested in pursuing other job opportunities in the Federal Public Service.” When the Plaintiff’s disability benefits ended in concert with medical input (Dr. Craig), the Plaintiff went back into the workforce, establishing his own business. [ 103 ] Mr.

Fitzgerald concluded that the Plaintiff’s position that he left his employment due to the sexual abuse, was inconsistent with his vocational assessment. He further interpreted the information provided by the Plaintiff to disclose that he had been passionate about being self-employed and dedicated long hours to the establishment of his businesses. He concluded that the Plaintiff did not have the vocational profile i.e., the skills or the financial supports, to be successful at business.

His Report disclosed that the Plaintiff told him that his business failed because “he was not good at sales, marketing or financial management.” In 1999 he started another company, but the Plaintiff reported that the company “did not get off the ground” as a result of insufficient finances. He wanted to open another business in 2000, but he reported that the death of his father was so “draining” that he could not work. [ 104 ] The Plaintiff had later entered the employment field again, working for a private company doing painting and other work. Mr.

Fitzgerald concluded that the record revealed that the Plaintiff had demonstrated an attachment to the labour sector. He felt that if his PTSD had been chronic and severe for 20 years, he would not have continued to be so attached to the labour market for such a long time. [ 105 ] Mr. Fitzgerald explained that the evidence presented to him demonstrated that the Plaintiff exhibited determination and will, and the private sector ventures which he chose were highly social, involving interaction with people.

He testified that the Plaintiff told him that he planned on leaving the federal government at age 55 after 30 years, once he was eligible for a full pension. Mr. Fitzgerald stated that people who have a fixed pension plan will generally retire at that time. The Plaintiff also disclosed to him that post-retirement, he wanted to run for a position on the town council, which further supported his finding that that the Plaintiff enjoyed interaction with people. He testified that in his experience some people with PTSD cannot leave their homes.

He stated that the information which was obtained by him, including interviews with the Plaintiff, disclosed that this was not the case with the Plaintiff. [ 106 ] The Plaintiff asks the Court to discount Mr. Fitzgerald’s evidence on the basis that he has not made any claim for future loss of income; his private business venture’s failed because he could not deal with people; earning capacity is not part of the Plaintiff’s case; and Mr. Fitzgerald had acknowledged that if the PTSD symptoms are accepted, this would impact upon his report. Overall, I considered the factual underpinning of Mr.

Fitzgerald’s Report to be consistent with the evidence, and I took no issue with his methodology. [ 107 ] Dr. Strain is an expert in forensic economics and economic losses in situations where careers are interrupted. He explained that he examines factors which help quantify the impact of childhood sexual abuse on income i.e., the economic cost to someone who suffers sexual abuse. He disclosed that he never met with the Plaintiff but prepared his Report using the Plaintiff’s income data. [ 108 ] Dr. Strain advanced three scenarios: (

i) that the Plaintiff continued as a technician with his employer; (ii) that the Plaintiff graduated from university; and (iii) that the Plaintiff had graduated from a college or trades’ academy. The Plaintiff relies on the first scenario calculating a loss of $1,518,500 had he continued employment with the federal government. [ 109 ] Dr. Strain assumed that the Plaintiff’s employment difficulties were due to sexual abuse and explained that if the Court negates

any causal link between abuse and income loss, all of the calculations “go out the window”. He used an 11.57% statistical average lossfor persons who have been sexually abused but noted that studies reflect that severity is a consideration. Whether the Defendant is vicariously liable [110] Vicarious liability does not require fault on the part of a defendant. The Supreme Court of Canada in John Doe v.

Bennett, 2004SCC 17, explained vicarious liability as follows at paragraph 17: 17 … The doctrine of vicarious liability imputes liability to the employer or principal of a tortfeasor, not on the basis of the fault of theemployer or principal, but on the ground that as the person responsible for the activity or enterprise in question, the employer or principalshould be held responsible for loss to third parties that result from the activity or enterprise. [111] The Supreme Court of Canada had considered the law relating to vicarious liability in the context of sexual misconduct in Bazleyv.

Curry, (SCC), [1999] 2 S.C.R. 534 and Jacobi v. Griffiths, (SCC), [1999] 2 S.C.R. 570. The courtestablished a two-step process in the assessment of vicarious liability in particular cases. First, had the issue been conclusively settled byprecedent? If not, did the policy rationales support a finding of vicarious liability? [112] In Bazley, the sexual abuse was perpetrated by an employee in a residential care facility for emotionally-troubled children.

Theabuse occurred while the caregiver was putting the child to bed. [113] This case instructs that a finding of vicarious liability requires a “strong connection” between the employment role and thewrongful act and the application of the important policy considerations. McLachlin, J. (as she then was), explains this at paragraph 42: 42 … The policy considerations that justify imposition of vicarious liability for an employee's sexual misconduct are unlikely to besatisfied by incidental considerations of time and place.

For example, an incidental or random attack by an employee that merely happensto take place on the employer's premises during working hours will scarcely justify holding the employer liable. Such an attack isunlikely to be related to the business the employer is conducting or what the employee was asked to do and, hence, to any risk that wascreated. [114] The court referred to relevant factors in assessing whether an employer created or materially contributed to the risk of anemployee committing a wrong, thereby incurring vicarious liability for those acts. The factors include: (

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 bythe 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. [115] The first factor is addressed at paragraph 43: 43 … It is obvious that the risk of an employee sexually abusing a child may be materially enhanced by giving the employee anopportunity to commit the abuse. There are many kinds of opportunity and the nature of the opportunity in a particular case must becarefully evaluated in determining whether it has, in fact, materially increased the risk of the harm that ensued.

If an employee ispermitted or required to be with children for brief periods of time, there may be a small risk of such harm — perhaps not much greaterthan if the employee were a stranger. If an employee is permitted or required to be alone with a child for extended periods of time, theopportunity for abuse may be greater. If in addition to being permitted to be alone with a child for extended periods, the employee isexpected to supervise the child in intimate activities like bathing or toiletting, the opportunity for abuse becomes greater still.

As theopportunity for abuse becomes greater, so the risk of harm increases. [116] The court must investigate the perpetrator’s specific duties. Actions which are independent of the employment and only“coincidentally linked” to the enterprise will not justify a finding of no-fault liability on an employer (at paragraph 36). [117] Time and place considerations are also relevant factors in the assessment of vicarious liability. This is explained at paragraph45: 45 Other factors may be important too, depending on the nature of the case.

To require or permit an employee to touch the client inintimate body zones may enhance the risk of sexual touching, just as permitting an employee to handle large sums of money mayenhance the risk of embezzlement or conversion. This is the common sense core of the "mode of conduct" argument accepted by the trialjudge in this case. (The same factor might of course be analyzed in terms of enhanced opportunity.) Time and place arguments may alsobe relevant in particular cases.

The mere fact that the wrong occurred during working hours or on the jobsite may not, standing alone, beof much importance; the assessment of material increase in risk cannot be resolved by the mechanical application of spatial and temporalfactors. This said, spatial and temporal factors may tend to negate the suggestion of materially enhanced risk of harm, insofar as they

suggest that the conduct was essentially unrelated to the employment and any enhanced risk it may have created (for example, the employee's tort occurred offsite and after hours). The policy considerations of fair compensation and deterrence upon which vicarious liability is premised may be attenuated or completely eliminated in such circumstances. (Emphasis in original.] [ 118 ] Bazley articulates the policy considerations of compensation and deterrence.

A finding of vicarious liability results in compensation by a solvent defendant, an outcome which will promote efficient administration and supervision of employees and, in turn, reduce future harm (at paragraphs 30-32). [ 119 ] In Bazley , the non-profit organization was found vicariously liable for the tort of sexual abuse in the application of these principles: The perpetrator’s employer bestowed upon him a “parental relationship” with the child including “intimate private control” in fulfilling the employer’s goals (at paragraph 58).

The sexual abuse occurred while putting the child to bed, a role expressly given to the perpetrator by his employer. [ 120 ] Jacobi was decided by the Supreme Court of Canada at the same time as Bazley . An individual employed as the Boys and Girls Club’s recreation director sexually assaulted two children. He was expected to organize and supervise after-school activities, and in so doing, develop a “rapport” with the children. The Plaintiffs were both young and had a difficult home life.

The sexual assaults occurred away from the Club and outside working hours, except for one incident of sexual touching in the Club’s van. The employee had pleaded guilty in criminal proceedings and was sentenced to imprisonment for six years. [ 121 ] Jacobi considered the nature of the perpetrator’s contact with the children as mandated by his employer. It was noted that while he was expected to develop a friendship with the children, he was not placed in a position akin to a parent with responsibility to undertake intimate tasks such as bathing or putting them to bed.

Binnie, J. writing for the majority stated at paragraph 41: 41 … While any situation which places adults in contact with children creates some possibility of abuse, an employer who encourages an employee to create no more than a positive rapport with children is not at the same end of the spectrum of risk as the employer in Children's Foundation. [ 122 ] The facts also disclosed that the Boys and Girls Club offered its members recreation in a public setting involving group activities.

The program did not relate to activities in the employee’s home and the employee’s role did not include participation in the children’s private lives (at paragraph 43).

The evidence disclosed that the sexual abuse developed over the course of an ongoing “friendship” resulting in the children eventually going to his residence (at paragraph 40). [ 123 ] With reference to the policy consideration of deterrence, Jacobi notes that an employee who commits a sexual assault is committing a crime for which society has already placed a high deterrence factor where sentencing of up to ten years in jail for sexual assaults can be imposed ( Criminal Code , R.S.C., 1985, c.

C-46, s. 271 ). [ 124 ] Binnie, J. interpreted the actions of the perpetrator in relation to the “strong connection” test at paragraph 80: 80 The key to this case, in my view, is that the Club's "enterprise" was to offer group recreational activities for children to be enjoyed in the presence of volunteers and other members. The opportunity that the Club afforded Griffiths to abuse whatever power he may have had was slight. The sexual abuse only became possible when Griffiths managed to subvert the public nature of the activities.

The success of his agenda of personal gratification, which ultimately progressed to sex acts, depended on his success in isolating the victims from the group. The progress from the Club's program to the sexual assaults was a chain with multiple links, none of which could be characterized as an inevitable or natural "outgrowth" of its predecessor: [Emphasis in original.] [ 125 ] The activities of the Boys and Girls Club did not require him to be alone with any of the children.

Instead, the employee introduced his own “bait of home attractions”, including video games which were unrelated to the Club’s activities. [ 126 ] Jacobi also took into consideration that parental authority was never transferred. The children’s mother gave her permission to the children visiting the perpetrator at his home.

Jacobi found that it would have been evident to a “reasonably cautious parent” that visits with the perpetrator were not part of the Club’s program (at paragraph 80). [ 127 ] Jacobi concluded that the ultimate inappropriate relationship with the children was “too remote” from the employer’s enterprise to impose vicarious liability. [ 128 ] The court found that the creation of a positive role model was an insufficient basis to impose vicarious liability at paragraphs 82 and 83: 82 … I do not accept that an enterprise that seeks to provide a positive role model thereby encourages intimacy.

Nor do I believe that "mentoring", as such, puts one on the slippery slope to sexual abuse. If it did, any organization that offered "role models" would be looking at no-fault liability. Most organizations dealing with children inevitably involve role models, from the neighbourhood soccer league to Girl Guides to the Duke of Edinburgh awards programs. "Mentoring" is characteristic of everything from Air Cadets to Big Sisters. I can find in the evidence nothing to suggest that Griffiths' own role required anything more than the establishment of a "rapport" with the children.

There is no suggestion that physical intimacy would be either necessary or desirable. Intimacy between Griffiths and one or more of the members, even if maintained on a wholly non-sexual level, would have been destructive of the Club's program, leading to problems of favouritism, feelings of exclusion, and dissension. 83 The Club did not confer any meaningful "power" over the appellants. They were free to walk out of the Club at any time. They went home to their mother every night. …

[ 129 ] Jacobi underscored that a finding that vicarious liability has not been established must not be interpreted as diminishing the perpetrator’s reprehensible actions: 84 Griffiths took advantage of the opportunity the Club afforded him to make friends with the children. His manipulation of those friendships is both despicable and criminal, but whatever power Griffiths used to accomplish his criminal purpose for personal gratification was neither conferred by the Club nor was it characteristic of the type of enterprise which the respondent put into the community.

That being the case, I do not think the one act of sexual touching which occurred on the Club van, given that it was a minor and incidental part of Griffiths' ongoing campaign of sexual predation outside Club facilities and outside Club hours, was sufficient to trigger no-fault liability. As McLachlin J. pointed out in Children's Foundation at para. 45, the mechanical application of time and place criteria obscures the more fundamental analysis. [ 130 ] The Supreme Court of Canada’s framework for determining vicarious liability has been applied by this Court in John Doe v.

Avalon East School Board , 2004 NLTD 239 . Vicarious liability was found to exist in a situation where the teacher’s employment duties included private instruction, removed from the rest of the class (at paragraph 63). [ 131 ] A recent decision of this court examined liability for sexual abuse perpetrated by a cadet training officer. In Jane Doe v. M.N. , 2018 NLSC 162 , the Plaintiff, a cadet, sought damages against her cadet officer and the Attorney General of Canada, as separate defendants. The cadet officer did not defend the action against him. The Attorney General of Canada joined him as third party.

As with this case, the Plaintiff and the cadet officer were familiar to each other’s families. [ 132 ] Criminal charges were brought against the officer who ultimately pleaded guilty to one count of sexual assault and one count of sexual interference contrary to sections 271 and 251 of the Criminal Code , R.S.C. 1985, c. C-46 . [ 133 ] Jane Doe considered the National Defence Act , R.S.C. 1985, c. N-5 and the Queen’s Regulations for the Canadian Cadet Organizations issued on the authority of the Chief of Defence staff (at paragraph 38).

The statement of the aim of the cadet organization as set out in publications of the Department of National Defence was considered at paragraph 90: CADET PROGRAM (CP) The aim of the CP is to develop in youth the attributes of good character and leadership, promote physical fitness, and stimulate the interest of youth in the sea, land and air activities of the Canadian Forces (CF). [ 134 ] These are similar to those under consideration in this proceeding. [ 135 ] In Jane Doe the training officer hid his actions from the cadet organization and the plaintiff’s parents and there was no evidence to establish that anyone in the cadet organization knew of the relationship.

Hurley, J. described his duties as training officer at paragraph 102: 102 … M.N. was a training officer, which would not generally provide him with the opportunity to abuse the Plaintiff nor did it significantly increase the risk of harm to the Plaintiff. The vast majority of the assaults took place while M.N. was on working hours or lunch break with his employer, a mental health facility, and while the Plaintiff was under the authority of her school, her parents, or both. [ 136 ] The claim of negligence against the Crown was dismissed.

The evidence disclosed that the training officer was properly screened in accordance with the strict procedures which were in place (at paragraph 57) and that a failure to properly supervise was not established because the cadet officer and plaintiff concealed their sexual relationship from everybody and arranged their meetings outside of cadet activities (at paragraph 58). The standard of care of a careful and prudent parent was found to have been met. Liability was established against the training officer and damages were awarded against him. [ 137 ] Hurley, J. also dismissed the claim of vicarious liability.

Hurley, J. concluded that the fact that there were two incidents of “minor sexual touching” during cadet activities was insufficient to impose vicarious liability on the Crown (at paragraph 101). [ 138 ] Hurley, J. explained his finding at paragraphs 88 and 95: 88 In the present case, the Plaintiff has failed to prove that the enterprise of the Crown Defendants created and fostered the risk resulting in the Plaintiff being sexually abused. M.N. was a training officer with the army cadet corps.

His role was to establish and plan for the delivery of certain subjects and topics, which would involve arranging for appropriate instructors. He would also be called upon to assist in some areas such as marksmanship, drills and similar matters. … 95 The Supreme Court of Canada in B. (K.L.) reaffirmed that the plaintiff must establish that

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