2018 NLSC 162, 2018 NLSC 162

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Jane Doe v. M.N. , 2018 NLSC 162 Date : July 20, 2018 Docket : 201201G2234 Between: Jane Doe, a minor, by her Guardian ad litem, John Doe Plaintiff And: M.N. First Defendant And: community one Royal Canadian Army Cadet Corps. Second Defendant And: The Army Cadet League of Canada Third Defendant (Discontinued) And: The Department of National Defence Fourth Defendant And: Her MAjesty the Queen (Canada) as represented by the Attorney General of Canada Fifth Defendant And: M.N.

Third Party Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

Before: Justice David F. Hurley Place of Hearing: St. John’s, Newfoundland and Labrador

Summary: The Plaintiff commenced an action against M.N. in relation to sexual assaults, which took place over a four-month period. The Plaintiffwas 13 years of age when the abuse began. A default judgment was entered against M.N. The Plaintiff was a member of the local cadetcorps. and M.N. was an instructor. The Plaintiff also sued the local cadet corps., the Department of National Defence and the AttorneyGeneral of Canada for negligence, breach of fiduciary duty, breach of non-delegable duty and vicarious liability These claims weredismissed with Costs. Damages were assessed against M.N. Appearances: John W.

Lavers & Will Hiscock Appearing on behalf of the Plaintiff No Appearance First Defendant / Third Party Corinne Bedford & Appearing on behalf of the Second, Fourth Sara Drodge and Fifth Defendant Authorities Cited: CASES CONSIDERED: Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729; R. v. M.N., 2012 NLTD(G) 52;Mustapha v. Culligan of Canada Ltd., 2008 SCC 27; Myers v. Peel (County) Board of Education, (SCC), [1981] 2S.C.R. 21; A.B. v. C.D., 2011 BCSC 775; Swales v. Glendinning, (2004), (ON SC), 237 D.L.R. (4th) 304, 128A.C.W.S. (3d) 853 (Ont. S.C.); H. (S.G.) v.

Gorsline, 2001 ABQB 163, 2001 ABQB 671 (add’l. reasons), aff’d 2004 ABCA 196; G.(B.M.) v. Nova Scotia (Attorney General), 2007 NSSC 27; Blackwater v. Plint, 2005 SCC 58 , [2005] 3 S.C.R. 3; Frame v.Smith, (SCC), [1987] 2 S.C.R. 99; K.L.B. v. British Columbia, 2003 SCC 51; Plotnikoff v. Saskatchewan, 2004 SKCA59; C.A. v. J.W.C. (1998), (BC CA), 113 B.C.A.C. 248; G. (E.D.) v. Hammer, 2003 SCC 52; Lewis (Guardian adlitem of) v. British Columbia, (SCC), [1997] 3 S.C.R. 1145; Broome v. Prince Edward Island, 2010 SCC 11; John Doev. Bennett, 2004 SCC 17; Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534; Jacobi v.

Griffiths, (SCC),[1999] 2 S.C.R. 570; B. (E.) v. Order of the Oblates of Mary Immaculate (British Columbia), 2005 SCC 60; John Doe v. Avalon EastSchool Board, 2004 NLTD 239; John Doe v. O’Dell (2003), (ON SC), 230 D.L.R. (4th) 383, 2003 CarswellOnt3456 (Sup. Ct.); G. (B.M.) v. Nova Scotia Attorney General, 2007 NSCA 120; T. (K.) v. Vranich, 2011 ONSC 683; M. (K.M.) v. RomanCatholic Episcopal Corp. of the Diocese of London in Ontario, 2011 ONSC 2143; M. (D.) v. W. (W.), 2013 ONSC 4176; Shaw v. Staples,2013 ONSC 3290; Rich v. Bromley Estate, 2013 NLCA 24; Hill v.

Church of Scientology of Toronto, (SCC), [1995] 2S.C.R. 1130; Norberg v. Wynrib, (SCC), [1992] 2 S.C.R. 226; Morrow v. Outerbridge, 2009 BCSC 433

STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50;National Defence Act, R.S.C. 1985, c. N-5; School’s Act 1987, S.N.L. 1997, c. S-12-2 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D.; Judgment Interest Act, R.S.N.L. 1990, c. J-2 REASONS FOR JUDGMENT Hurley, J.: INTRODUCTION [1] From November 2009 to late March 2010, M.N.[1] carried on a sexual relationship with the Plaintiff, whose date of birth isJanuary 25, 1996.

The Plaintiff was therefore 13 years old when the relationship commenced and 14 years old when it terminated. Overthis period, the sexual activity occurred by M.N. arranging to pick up the Plaintiff in his vehicle mainly at her school during her lunchperiod. [2] Following an investigation, M.N. was charged with offences under the Criminal Code, R.S.C. 1985, c. C-46. On June 6,2011, he entered a guilty plea to one count of sexual assault contrary to

section 271 of the Criminal Code and one count of sexualinterference contrary to

section 251 of the Criminal Code. As both charges related to the same factual incidents, Crown counselrequested that the charge of sexual assault be stayed in accordance with the “Kienapple” principle against multiple convictions(Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729).

For the conviction of sexual interference, M.N. was sentencedto a period of imprisonment of 21 months to be followed by one-year probation. [3] The Plaintiff commenced these civil proceedings on May 9, 2012, against M.N., Community One Royal Canadian ArmyCadet Corps.[2], the Army Cadet League of Canada (discontinued May 15, 2017), the Department of National Defence and Her Majestythe Queen (Canada) as represented by the Attorney General of Canada.[3] [4] Third Party proceedings were brought against M.N. by Notice filed on January 25, 2013, by the Second Defendant, FourthDefendant and Fifth Defendant. [5] The Attorney General of Canada (“Canada”) filed a defence on behalf of the following named defendants: Community OneRoyal Canadian Army Cadet Corps., the Department of National Defence, and Her Majesty the Queen (Canada) as represented by theAttorney General of Canada.

In the Defence, Canada maintains that the Attorney General of Canada is the only appropriately namedparty by virtue of section 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. [6] M.N. did not file a defence.

Summary judgment against him was ordered on October 3, 2013, with damages to be assessed. [7] The proceedings before me revolve around issues of negligence, vicarious liability, fiduciary duty, non-delegable duty anddamages. JANE DOE (PLAINTIFF) BACKGROUND [8] At the time of trial, the Plaintiff was 20 years old. She had just completed the third year toward a Bachelor of ScienceDegree in Psychology. She then commenced a microbiology course with classes daily for a six-week period with two laboratory sessionsweekly. For the three university years, she has maintained a 3.93 G.P.A. out of maximum mark of 4.0.

She will commence the fourthyear of her studies in September. [9] She had graduated from high school with first-class honours with a subject average in excess of 90% with a specialdesignation in French immersion. She intends to pursue post-graduate degrees including a Ph.D. and a career in Psychology. [10] In addition to impressive academic achievements, the Plaintiff, from an early age, demonstrated a high degree of excellence incompetitive sports. The Court was told that her father has national and international status as a badminton coach.

With hisencouragement and assistance and with her obvious skills, she took

part in badminton competitions on provincial, Atlantic and nationallevels commencing when she was eight years old. She also played soccer, softball, volleyball and basketball at the provincial level. Forthe past five years the Plaintiff has played badminton competitively on a North American level. [11] While at university, the Plaintiff was quite active in securing employment within the school’s administration. She worked at

various times in the library and the registrar’s office. During one summer, she worked with international student services as well as assisted an autistic young person through behavior therapeutic analysis. For a period of time, she served as a student assistant with the Department of Psychology. During her first year at university, she was a tutor in the area of languages. As well, for a period of time, she served on the university’s student union. [ 12 ] Outside the university, she was appointed to the Premier’s Youth Advisory Committee.

While in high school, she served on a committee that advised the Royal Canadian Mounted Police (RCMP) on youth concerns. [ 13 ] The Plaintiff, however, disclosed an unfortunate episode in her life when she was 12 years old, approximately six months prior to her involvement with M.N. At that time, she told the Court, she advised an uncle in another part of the Province that she had been repeatedly raped when she was eight or nine years of age. The suggestion that she had been raped came from an online “counsellor” named Jack with a user name of “Therapy 101” or of a similar name.

The Plaintiff told the “counsellor” that she was under stress, experiencing conflicts with her family and having nightmares. The counsellor told her that these symptoms were consistent with her having been raped and abused. The Plaintiff says she eventually accepted the opinion provided by the online counsellor. When the uncle’s wife disclosed the matter to her parents in August 2009, the Plaintiff convinced them it was true. Medical professionals, the police, and counsellor became involved; she did not disclose the basis of the conclusion of being raped.

At trial, she admitted that the rapes did not take place. [ 14 ] During this crisis, the Plaintiff continued to excel academically and participated extensively in sports. [ 15 ] Although the Plaintiff testified that these rapes did not occur, she has failed to tell her parents the truth. As well, just prior to her going to the police relating to M.N. she told one of her best friends that the rapes actually happened. During her relationship with M.N., she told him that she had been repeatedly raped when she was eight or nine years old.

The Plaintiff’s Relationship with M.N. [ 16 ] M.N. moved from Community 1 to Community 2 on January 1, 2009 and resided on the same street as did the Plaintiff and her family. As the residences were in very close proximity, interactions between the two families developed. As well, M.N.’s son who was one year younger than the Plaintiff attended the same school prior to the move. In his statement to the police, M.N. stated that he was earlier introduced to the Plaintiff by his son. The witnesses and counsel did not refer to specific dates.

In the criminal trial dealing with sentencing, the Agreed Statement of Facts indicated that the Plaintiff and M.N. met when she came to M.N.’s home to visit his son. [ 17 ] In her second statement to the RCMP on May 26, 2010, the Plaintiff when asked about visiting M.N.’s household stated, “Well, I used to hang out with his kid … or his son … quite a bit as I was down there a lot anyway.” Similarly, in her statement of April 27, 2010, on the issue, the Plaintiff advised Corporal Anderson “So I’d see him a lot there.

And besides that me and [M.N.’s son] used to hang out all the time so I’ve been down to his house probably more times than I can count.” M.N. in his police statement said that the Plaintiff would have come to his home to play video games and other activities with his son and daughter. This is consistent with what she told Dr. Jeff Cunningham, as recounted in his report of February 13, 2015.

Visiting the residence of M.N.’s son and meeting M.N. appears to have originated when M.N.’s son was a “new neighbor,” which suggests a time in early 2009. [ 18 ] Sometime after M.N. moved to Community 2, he would drive the Plaintiff to and from school with his son and daughter. This was confirmed by both the Plaintiff and M.N. at least on two occasions in their police statements.

M.N. would leave his car unlocked overnight for the convenience of the Plaintiff in the morning. [ 19 ] Also at this time, the Plaintiff and her father were involved with coaching and providing badminton lessons to M.N.’s son and M.N.’s daughter. While her father was the main instructor, the Plaintiff would attend to assist.

M.N. would take his children to these weekly lessons and would remain to watch and discuss their progress. [ 20 ] While the Plaintiff generally indicated at trial that she first met M.N. in mid-October 2009 at a cadet meeting, I find it more probable that she met and knew him previously as other evidence indicates. I have interpreted her evidence at trial as attempting to minimize her involvement with M.N. outside the cadet program.

M.N.’s Involvement with Cadets [ 21 ] During an approximate four-month period of November 2009 to late March 2010, the time period that the sexual assaults occurred, M.N. was a part-time employee of the Department of National Defence as a Cadet Instructor Cadre (CIC). He had a full-time position with a mental health agency funded by the Provincial Government. [ 22 ] In 2008 M.N., whose son was in the Army Cadets, made application to become a civilian volunteer in the Community One Royal Canadian Army Cadet Corps.

His application was screened by the Army Cadet League of Canada, a civilian non-profit organization that assists the Department of National Defence in various objectives including the recruitment of instructors, civilian volunteers and cadets. [ 23 ] The screening process for a civilian volunteer, which concluded in October 2008 consisted of an application from M.N., three references, Court Records Check, Police Records Check (PRC) and Vulnerable Sector Screening (VSS). The VSS permits the disclosure of conviction records for sexual offences for which a pardon has been granted.

All checks were clear and the references provided excellent recommendations according to the Commanding Officer at the Community One Royal Canadian Army Cadet Corps. [ 24 ] Subsequently, M.N. applied to become a CIC Officer. For this position, he was screened this time by the Canadian Forces with the Department of National Defence. M.N. was again subjected to a screening process including the various criminal records checks and a medical assessment.

He was also required to provide copies of his birth certificate, social insurance card, marriage certificate and education records, as well as letters of reference attesting to his character. M.N. was also required to read and confirm his compliance with the Canadian Forces Policy on Discrimination and Harassment and the Canadian Forces Drug Control Program Policy. He was also interviewed in person by the Canadian Forces.

[ 25 ] On March 23, 2009, M.N.’s status changed from a volunteer to that of member of the Canadian Forces, having been accepted for enrolment in the CIC program. [ 26 ] M.N. was suspended from his position as a CIC Officer upon being charged with sexual interference and sexual assault of the Plaintiff, an army cadet who was 13 to 14 years old at the time of these offences. M.N. was formally released as a member of the Canadian Armed Forces on April 24, 2012, following his conviction for sexual interference.

The Plaintiff’s Involvement with Cadets [ 27 ] The Plaintiff was a member of the Community One Royal Canadian Air Cadets from September 2008 to October 26, 2009, at which time she transferred to the Community One Royal Canadian Army Cadet Corps. She left the army cadets in April 2010. The Plaintiff’s Sexual Involvement with M.N. [ 28 ] The details of the relationship between the Plaintiff and M.N. are generally set forth in R. v. M.N. , 2012 NLTD(G) 52, by way of an Agreed Statement of Facts which states as follows at paragraph 4: 4.

The Agreed Statement of Facts entered in this matter reads as follows: In the Fall of 2009 the complainant was 14 [should be 13] years old and was involved in the [Community 1] area Air Cadets, as well as Badminton at her school. At one point in the Fall her Air Cadet Squadron was involved in a shooting exercise which was supervised by Army Cadet officers, the accused, [M.N.], being one of them. The Accused and the complainant first met when the complainant came to the accused's house to visit their son.

After this shooting exercise, and because both badminton and Air Cadets conflicted, [the complainant] left the Air Cadet Squadron and joined the Army Cadet Squadron. This happened, she believes, in either Late November or early December of 2009. The Accused and the complainant lived on the same street, and the complainant was friends with the accused's son, who was in the same Army Cadet Corps. Because of this, the complainant requested rides to and from Cadets with the accused. During these trips, the accused and the complainant began to talk frequently and started to get close to one another.

The complainant frequently talked to the accused about personal problems. The accused also discussed his own mental health issues with the complainant as he was suffering from depression. Shortly before 2010, in December of 2009, the accused developed a physical relationship with the complainant. The complainant indicates that the accused initiated the physical relationship, but that it was not forced upon her, and she was compliant. Over the next four months both the accused and the complainant frequently contacted each other via text message, MSN, and cell phone to arrange personal meetings.

This occurred with a frequency of about two to three times a week. The complainant indicates that at least one of these two or three times would involve sexual intercourse or other sexual contact. Most often, the accused would arrange to pick the complainant up at lunch time from her school, [Community 1] Middle School , and the two would spend the lunch break together. Frequently during these lunch breaks the two would engage in sexual intercourse in the accused's vehicle, at various remote locations in the Stephenville area.

The accused also engaged in sexual intercourse with the complainant at his own home on one occasion. The accused also engaged the complainant in oral sex, both him performing it on her and her performing it on him. The complainant reports that this occurred 10 to 20, and a dozen times, respectively. Over the course of roughly a 4 month period (from December 2009 to Easter, 2010) the accused and the complainant exchanged nearly 600 e-mail and text messages that indicate throughout that the two were in a mutual relationship.

Several of the messages contain explicit sexual comments and remarks, both to and from the accused and to and from the complainant, and several were sent from the accused to the complainant (and vice versa) to arrange meetings for sexual intercourse and other sexual contact. The complainant could not quantify the number of occurrences of sexual contact, but stated that she would meet the accused two or three times per week for a period of four months, and that on at least one occasion throughout the week the two would have sexual intercourse and/or other sexual contact.

Over the course of the relevant four months the accused was 33 years old. The sexual contact ended shortly following Easter 2010 and upon the return of the complainant from the Newfoundland Games. Upon return she ceased contact with the accused and quit Army Cadet Corps. The occurrences came to the attention of police in April 2010 when the complainant reported, via written letter, to her father her reasons for quitting Army Cadets and revealed that she had been in a

sexual relationship with the accused. On the following day the complainant's father brought her to the RCMP to report the incident. [The complainant] gave a statement to police outlining the details of the incidents. Police investigation revealed the majority of e-mailsand text messages sent between the accused and the complainant. [29] Although I have found that she had known M.N. from their neighborhood, she first became involved with him in cadetactivities in mid-October 2009 when he filled in on one occasion as a shooting instructor in the air cadets.

As her father was unable topick her up after the session, M.N. offered to drive her home. While the evidence is somewhat vague, I assume that her father would nothave dropped her off in the neighbouring community without arranging for her transportation home. [30] On the drive home she advised M.N. that the scheduled evening for air cadets conflicted with badminton. As did otherindividuals, he advised her to transfer to army cadets where he was a training officer. She said she liked M.N. and found him to befunny. Within approximately two weeks, on October 26, 2009, she joined the army cadets.

She said she had no contact with M.N.during this “transitional” period. As the army cadets met on the same time as did a sports event attended by the Plaintiff’s father, heagreed that M.N. would drive the Plaintiff home. The army cadet corps. had a scheduled meeting in excess of two hours duration eachweek with an optional training session lasting approximately one hour on another evening. [31] Commencing October 26, 2009, the Plaintiff drove to and from the armories with M.N. and his son.

The Plaintiff gave theimpression that the relationship with M.N. was formed during the drives to and from the cadet meetings on and after October 26, 2009. As M.N.’s son, according to Captain Brown, had a very high attendance record and would be present in his father’s vehicle, andconsidering that the sexual relationship developed fairly quickly, it is more probable than not the relationship was fostered by numeroustelephone calls, texts and emails commencing November 1, 2009, through which arrangements were made to pick up the Plaintiff atvarious locations and times, but mainly at school during lunch time.

During the four-month relationship, approximately a total of 600texts, emails and phone calls were exchanged. [32] The Plaintiff and M.N. engaged in sexual intercourse once at his residence and on one occasion at his office. While she wasvague, she said that sexual activity could have taken place after leaving the cadet classes, but she could not recall any particularincidents. I find it unlikely that sexual intercourse took place while travelling from army cadet meetings to her home.

Had the Plaintiffarrived late from cadets, it would have aroused suspicion, which was being avoided by both M.N. and the Plaintiff. As indicated, M.N.’sson who was in army cadets, drove with his father and according to the Commanding Officer, he had an extremely high attendancerecord. [33] During the investigation and prior to the commencement of litigation, the Plaintiff did not report any sexual incidents at armycadet meetings. At trial and in the Discovery Proceedings, she testified that the following two incidents occurred at army cadets:

a) During a cadet meeting, [M.N.] and the Plaintiff went into the hallway for supplies and when alone [M.N.] kissed andtouched the Plaintiff in the area of her breasts and behind.

b) At the overnight camp, the Plaintiff went to the officer’s cabins for headache pills. [M.N.] was there and kissed her. [34] The Plaintiff informed M.N. she wanted to terminate the relationship in early April 2010. She concluded that it wasinappropriate and wrong. When M.N. was told, he became upset and displayed immature behavior. He texted her continuously whenshe refused to respond. He frightened the Plaintiff by coming to her house.

She then disclosed the relationship to her father, whonotified the Police. liability [35] The Plaintiff claims that the Crown Defendants are liable to her for negligence, breach of fiduciary duty and breach of non-delegable duty. The Plaintiff also maintains that the Crown Defendants are vicariously liable for the conduct of M.N. negligence [36] The Plaintiff claims that the Crown Defendants are directly liable to her for negligence. Therefore, the Plaintiff must establishthe existence of a duty of care, a breach of that duty and resulting damages (Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para.3).

Absent any of these elements, the claim by the Plaintiff fails. [37] At trial, the Crown Defendants admitted that they owed a duty of care to the Plaintiff. Arguably similar to the present case, thestandard of care to be exercised by school authorities in providing for the supervision and protection of children for whom they areresponsible is one of a “careful and prudent parent” (Myers v. Peel (County) Board of Education, (SCC), [1981] 2 S.C.R.21; A.B. v. C.D., 2011 BCSC 775 at para. 111). [38] The formation of cadet organizations is highly regulated. The National Defence Act, R.S.C. 1985, c.

N-5 authorizes theMinister to establish cadet organizations under the control of the Canadian Forces.

Details relating to the administration of theseorganizations are set out in a comprehensive publication called the Queen’s Regulations for the Canadian Cadet Organizations (the“(QR) (Cadets)”) issued on the authority of the Chief of Defence Staff. [39] Further, the National Defence Headquarters has the authority to issue Cadet Administration and Training Orders (CATO) tosupplement QR (Cadets) and other publications and orders. [40] Of relevance in these proceedings is CATO 23-04 Canadian Cadet Organizations Adult Screening Policy, which establishes thepolicies and procedures to be applied to meet the screening requirements for adults working for the Canadian Adult Organizations(CAO).

In the opening sections of these Orders the Department of National Defence confirms that as the Canadian Forces are involved

in the training and development of youth as cadets, the importance of appropriate and thorough screening of adults entrusted to their carecannot be overstated. The evidence at trial established that the Crown Defendants take the screening requirements of adults veryseriously. [41] John Eckert gave evidence on behalf of the Crown Defendants. Mr. Eckert, who was a cadet in Community 1 from age 12 to18, recently became a CIC Officer with the Canadian Cadet Organization (CCO).

Previously in 2015 he applied and was accepted as aCivilian Volunteer (CV) and would have been subject to the screening process set out in CATO 23-07 Civilian Volunteers in Support ofAuthorized Cadet Activities. Afterward, the application and process for a CIC Officer was more extensive than that for a CV andinvolved a medical examination relating to physical and mental health as well as an interview by the Canadian Forces. The screeningprocess for Mr.

Eckert took eight months. [42] Also of relevance is CATO 13-12 Supervision of Cadets, which sets out in detail with clarification the policy regarding thelevel of supervision of cadets for various types of activities including mixed gender activities. CVs and senior cadets are given a reducedrole in the area. For example, adult volunteers and senior cadets cannot act as the sole supervisor of cadet activities.

As well, there is ahigher level of supervision in terms of the number of appropriate supervisors for overnight activities than it is for day activities. [43] Captain Brown, the Commanding Officer with the army cadets testified that part of the cadet training involves the delivery ofan introductory lecture titled “Positive Social Relations for Youth Training.” This particular program came into effect on June 1, 2009,and replaced a similar one. The lecture and discussions are of two hours and 45 minutes duration and are presented by a CIC Officertrained and qualified for that purpose.

This part of the program is delivered in the first two months of the cadet year, which ordinarilycommences in September.

The lecture and instructions are also mandatory at all summer camps or Cadet Training Centres at thecommencement of activities. [44] In addition to dealing with issues of good citizenship and leadership, the instructor reviews matters relating to harassment,criminal offences, and child abuse and how and where help can be found. [45] On the evidence, which I accept, the Plaintiff would have participated in this program at least twice and possibly three timesprior to commencing a relationship with M.N.; this would be in her first year in 2008 with air cadets, at the summer camp in Nova Scotiain 2009, and during the two months she participated in the air cadet training. [46] In spite of the unfortunate outcome, Captain Brown confirmed that the officers of the army cadet corps. and the officials withthe Department of National Defence complied with the rules with respect to the screening of M.N. and the other supervisors of thePlaintiff.

No evidence was presented to indicate that the screening process failed to disclose previous inappropriate conduct or concern. While the Plaintiff has taken issue with the supervision of M.N., it is not alleged that the officers at the army cadet corps. failed tocomply with the requirements set out by the Department of National Defence or with the standard of care exercised by a careful andprudent parent. [47] However, it is recognized that the Court must consider this matter in its full context to decide if there was a breach of duty ofcare to the Plaintiff.

On this issue, the parties have presented a number of authorities which I will now review. [48] On the allegation of negligence, the Plaintiff referred to Swales v. Glendinning, (2004), (ON SC), 237D.L.R. (4th) 304, 128 A.C.W.S. (3d) 853 (Ont. S.C.) in which the court found liability against the Diocese in that it failed to appreciateand actually ignored Glendinning’s unusual conduct of being alone with young children including at his apartment in the seminary andat overnight camping trips.

The judge found that the circumstances presented in that case provided the potential for improper behaviorand it should have been obvious to Glendinning’s fellow residents at the seminary. A duty of care arose, which the Diocese failed todischarge. [49] In the present case, there was no inappropriate or even suspicious conduct by M.N. observed by the officers at the army cadetcorps. that would call for further investigation and enhanced observation. [50] The Plaintiff’s parents consented without reservation to his taking her to school and to cadets.

In fact, the Plaintiff told thepolice that M.N. had become her father’s best friend. As well, both the Plaintiff and M.N. took extraordinary measures to conceal therelationship. She only disclosed this to her best friend and then to her father upon terminating the relationship. [51] The Crown Defendants maintain that the case of A.B. v. C.D. is similar to the case at bar, where the plaintiff was sexuallyassaulted by her former high school teacher. The plaintiff commenced an action against the teacher and the school board claiming thatthe board was negligent and vicariously liable for the action of the teacher.

There were seven incidents of sexual contact, which tookplace on school premises during school time. There was an acknowledgement that the plaintiff acquiesced to the sexual touching. Thecourt allowed the claim as against the teacher but dismissed the claim of negligence against the school board. [52] In finding that the school board was not aware of any suspicious conduct because the student and teacher took effective steps tokeep the relationship secret, this meant the school board could not have prevented the sexual activity. [53] The Crown Defendants refer to a similar decision, H. (S.G.) v.

Gorsline, 2001 ABQB 163, 2001 ABQB 671 (add’l. reasons),aff’d 2004 ABCA 196, in which a student was sexually abused by a teacher. The plaintiff asserted that the board ought to have knownabout the teacher’s behavior and should have taken appropriate measures. The court found that the teacher and student effectivelyconcealed their relationship, and that the teacher’s colleagues and parents did not suspect that anything untoward was happening.

Indismissing the claim against the board, the court found that the board complied with exercising the standard of care of a careful andprudent parent. [54] As well, the plaintiff maintained that the board was negligent in its failure to properly screen and assess applicant teachers. Indismissing this aspect of the claim, the court found in Gorsline at para. 106 that “… screening teacher applications in a different waywould not have prevented the hiring of Gorsline because his record was clear.”

[55] In G. (B.M.) v. Nova Scotia (Attorney General), 2007 NSSC 27, the plaintiff commenced a claim in negligence against theProvince relating to sexual assaults by a probation officer on a young offender. In dismissing this aspect of the claim, the court foundthat the abuse was not reasonably foreseeable, and concluded at paragraph 105: 105 In short, there is no evidence from which one might infer that the Defendant could have reasonably foreseen that Lalo wouldabuse the children on his caseload.

I am satisfied that the claim of negligence is not supported by the evidence. (The Nova Scotia Court of Appeal affirmed the decision dismissing the Plaintiff’s claim in negligence (2007 NSCA 120 at para. 54)) [56] In Blackwater v. Plint, 2005 SCC 58 it was argued that Canada and the United Church of Canada, the operators of residentialschools, were negligent in employing employees they knew or ought to have known to be pedophiles and in failing to exercise reasonablesupervision and direction over their employees.

The Supreme Court of Canada agreed that Canada and the United Church owed a dutyof care to the victims. However, the court agreed with the trial judge that the sexual assaults were not reasonably foreseeable in thecircumstances and dismissed the claim of negligence. [57] In conclusion, the evidence in these proceedings confirmed that the Crown Defendants were keenly aware of its obligation tocarefully screen adults involved with the operation of the cadet corps. Strict procedures were in place and were carried out.

Inretrospect, the vetting of M.N. did not disclose any concern, as it now appears his background was clear. [58] As well, the supervisors of M.N. cannot be faulted, as both M.N. and the Plaintiff took effective steps to conceal the nature oftheir relationship from everybody, including arranging meetings outside the place and times of the cadet activities. [59] The claim of negligence is therefore dismissed. breach of fiduciary duty [60] The Plaintiff submits that the relationship between the Crown Defendants and the cadets is a fiduciary one and that CrownDefendants’ failure to adequately supervise the army cadet corps. and M.N. constitutes a breach of this duty. [61] While the Crown Defendants concede that a duty of care was owed to the Plaintiff as the term is defined in negligence law,they contend their relationship with the Plaintiff was not fiduciary in nature.

In determining whether this relationship exists, referencemay be made to Frame v. Smith, (SCC), [1987] 2 S.C.R. 99 wherein the dissenting decision of Wilson, J. (laterapproved in Lac Minerals Ltd. v. International Corona Resources Ltd., (SCC), [1989] 2 S.C.R. 574), the followingcriteria were set forth as the necessary factors at paragraph 60: 60 Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or power.

(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. [62] The Crown Defendants maintain that in this case none of the three factors are found based upon the evidence. [63] An aspect of the duty of a fiduciary is not to take advantage of a trust relationship for the fiduciary’s own benefit.

In K.L.B. v.British Columbia, 2003 SCC 51, the Supreme Court of Canada referred to this as an essential element of this relationship, and thefiduciary will be liable for a breach of that duty (at para. 49). [64] On this issue, the court confirmed that the duty is to act loyally and not to put one’s interest ahead of the beneficiaries in amanner that abuses the trust (at para. 47). [65] In Plotnikoff v.

Saskatchewan, 2004 SKCA 59, the Saskatchewan Court of Appeal reviewed a trial decision wherein theappellants, two former foster children, had commenced a claim against the Province for breach of fiduciary duty relating to abuse by thefoster parents. The trial judge dismissed this aspect of the claim as the pleadings did not lay the foundation for a breach of fiduciaryduty. In confirming the decision of the trial judge, the court stated at paragraph 61 (See also C.A. v.

J.W.C. (1998), (BC CA), 113 B.C.A.C. 248): 61 Applying these principles to the issues in these appeals, we find that the pleadings do not lay a foundation for breach of fiduciaryduty. There is no allegation in the appellants' pleadings that the Government acted in its own self-interest and against the interests ofeither of the appellants.

Although there is a passing reference to breach of fiduciary duty, no material facts are pleaded in support of anysuch claims. [66] In the present case, not only did the pleadings not address the issue of self-interest, but more importantly, the evidence did notsupport this criteria. [67] Breach of fiduciary duty requires fault and it is not result-based liability. In G. (E.D.) v. Hammer, 2003 SCC 52, a youngstudent was repeatedly sexually assaulted by a janitor at her school.

She commenced an action against both the janitor and the schoolboard on the basis of vicarious liability, breach of fiduciary duty and non-delegable duty. In dismissing the claim for fiduciary duty, thecourt stated at paragraph 25 to 27:

25 The fact that a breach of fiduciary duty requires fault is one of the features that distinguishes this type of claim both from claimsbased upon statutory non-delegable duties of the sort at issue in Lewis, supra, and from claims based upon vicarious liability. The lattertwo types of claim are no-fault claims. Breaches of fiduciary duty, however, require fault. As the trial judge, Vickers J., noted at para.46: No fault obligations are imposed in the context of a claim for vicarious liability.

Breach of fiduciary duty is not a no fault claim. 26 In the case at bar, the only fault to which the appellant was able to point was the fault of the school janitor. The appellant wasunable to identify any action or omission on the part of the School Board that might itself amount to a breach of a fiduciary duty. Thefiduciary duty in this case lies upon the Board. The object for analysis, then, is not the conduct of the janitor but the conduct of thefiduciary, the Board.

The trial judge specifically found that "no person employed by the Board had any reason to suspect he [Mr.Hammer] was engaged or might be likely to engage in any inappropriate behaviour with the children" (para. 17). 27 I conclude that none of the conduct alleged against the School Board involves the type of wrong traditionally associated withbreach of fiduciary duty and that the appellant's claim for breach of fiduciary duty fails. [68] I have previously found that the Plaintiff has failed to establish that the Crown Defendants were negligent or at fault. [69] The Plaintiff’s claim based on a breach of fiduciary duty is dismissed. non-delegable duty [70] In the pleadings and argument, the Plaintiff alleges that the duty of care owed to her was non-delegable. [71] The Crown Defendants contend that the principle of non-delegable duty is inapplicable to this case but again acknowledge thatthey owed the Plaintiff a duty of care as that term is understood in negligence law.

In the pleadings and submissions in Court, the CrownDefendants have not alleged that they delegated that duty to anyone. Correspondingly, the Plaintiff has not alleged to whom the CrownDefendants have delegated the selection and supervision of M.N. [72] The Plaintiff refers to

section 46 of the National Defence Act, which authorizes the Minister to establish a cadet corps. such asCommunity One Royal Canadian Army Cadet Corps., the Second Defendant. The

section does not specify any statutory duty for thecare and supervision of members of the cadet program. [73] It is not in dispute that in certain circumstances some obligations and duties are “non-delegable” in the sense that an employercannot avoid liability by delegating the responsibility to an independent contractor or third party. According to the Supreme Court ofCanada in Blackwater, the consideration or inquiry into whether a non-delegable duty exists “… begins with the words of the statute …”(at para. 48). [74] In Lewis (Guardian ad litem of) v.

British Columbia, (SCC), [1997] 3 S.C.R. 1145, the Supreme Court ofCanada decided that where the applicable statutes created a duty on the Province to maintain the highway, that duty cannot be delegatedto an independent contractor, and that the Province remains liable for any negligence of the independent contractor and its employees.

The principle does not create strict liability as it requires someone to be negligent. [75] The safety of children in the context of a non-delegable duty was specifically reviewed by the Supreme Court of Canada inHammer, where it was found that the relevant statute did not “clearly place” the school board under a broad statutory non-delegable dutyto establish liability for several sexual assaults on a student by a janitor. While the School’s Act 1987, S.N.L. 1997, c.

S-12-2 providedfor specific duties pertaining to student health and safety, the legislation did not permit the inference that school boards are generally andultimately responsible for the health and safety of school children on school premises to render them liable for abuse by schoolemployees (See also, K.L.B.; Blackwater; and Broome v. Prince Edward Island, 2010 SCC 11). [76] Similarly in any event I have concluded that no non-delegable statutory duty can be inferred from the language of the statute. Further, I have previously found there was no negligence or breach of fiduciary as against the Crown Defendants.

The only wrongdoingswere the intentional criminal acts committed by M.N. [77] The claim by the Plaintiff for a breach of non-delegable duty is dismissed. VICARIOUS LIABILITY [78] Vicarious liability was defined by Chief Justice McLachlin in John Doe v. Bennett, 2004 SCC 17 at paragraph 17 in theseterms: 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. [79] The issue of vicarious liability for sexual assaults carried out by employees of the employer or principal has been reviewedfairly extensively by the Supreme Court of Canada.

The starting point for present-day analysis related to these proceedings are twodecisions released concurrently: Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534 and Jacobi v. Griffiths, (SCC), [1999] 2 S.C.R. 570. [80] In Bazley, Jacobi and subsequent decisions the Supreme Court of Canada stated that analysis for vicarious liability is governed

by the Salmond test, which provides that employers and principals are vicariously liable for (

a) employee acts authorized by the employer or principal; or (

b) unauthorized acts so connected with authorized acts that “they may be regarded as modes (albeit improper modes) of doing an authorized act.” ( Bazley at para. 10 ; see also Jacobi at para. 55 ; Blackwater at para. 20 - 21 ; Bennett , at para. 19 - 20 ) [ 81 ] The test with its inherent problems is more fully set out in Bazley at paragraphs 10 and 11 : 10 Both parties agree that the answer to this question is governed by the "Salmond" test, which posits that employers are vicariously liable for (1) employee acts authorized by the employer; or (2) unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.

Both parties also agree that we are here concerned with the second branch of the test. They diverge, however, on what the second branch of the test means. The Foundation says that its employee's sexual assaults of B. were not "modes" of doing an authorized act.

B., on the other hand, submits that the assaults were a mode of performing authorized tasks, and that courts have often found employers vicariously liable for intentional wrongs of employees comparable to sexual assault. 11 The problem is that it is often difficult to distinguish between an unauthorized "mode" of performing an authorized act that attracts liability, and an entirely independent "act" that does not. Unfortunately, the test provides no criterion on which to make this distinction.

In many cases, like the present one, it is possible to characterize the tortious act either as a mode of doing an authorized act (as the respondent would have us do), or as an independent act altogether (as the appellants would suggest). In such cases, how is the judge to decide between the two alternatives? [ 82 ] M.N.’s sexual relations with the Plaintiff were not authorized by any of the Crown Defendants.

The issue therefore, is whether M.N.’s unauthorized acts were so connected with the authorized acts that they may be regarded as improper modes of doing an authorized act. [ 83 ] In Bazley , the Supreme Court of Canada established a two-step process for determining when an unauthorized act is so connected with the authorized acts that they may be regarded as improper modes of doing an authorized act as stated in paragraph 15: 15 This review suggests that the second branch of the Salmond test may usefully be approached in two steps.

First, a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability. This Court has an additional duty: to provide guidance for lower tribunals.

Accordingly, I will try to proceed from these first two steps to articulate a rule consistent with both the existing cases and the policy reasons for vicarious liability. [ 84 ] With respect to the first step, the parties did not allege that there were precedents which “unambiguously determine” whether the case should attract vicarious liability.

They did, however, refer to authorities, which they argue were helpful to their respective positions. [ 85 ] As precedent does not resolve the issue of vicarious liability in the present case, the consideration that now arises is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability.

A review of some additional aspects of the factual background is helpful in this determination. [ 86 ] In determining whether an employer or principal is vicariously liable for an employee’s unauthorized intentional acts and conduct, courts shall be guided by the following factors ( Bazley at para. 41 ): (

i) The opportunity that the enterprise afforded the employee to abuse his or her power; (ii) The extent to which the wrongful act may have furthered the employee’s aims (and hence be more likely to have been committed by the employee); (iii) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; (iv) The extent of power conferred on the employee in relation to the victim; (

v) The vulnerability of potential victims to wrongful exercise of the employee’s power. [ 87 ] Bazley dealt with sexual abuse by an employee in a residential care facility for the treatment for emotionally troubled children. The court found that vicarious liability should be imposed on the employer and operator, the Childrens’ Foundation. In the companion case, Jacobi , sexual abuse was perpetrated by an employee of the operator of the Boys’ and Girls’ Club, a non-profit entity providing children with recreational activities that were carried on after school and on Saturdays.

The court found that vicarious liability should not be imposed. [ 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. [ 89 ] The Plaintiff refers to her getting rides to and from cadets as a relevant factor in the employer’s creation of the risk of M.N.’s wrongful conduct. This arose as the result of an arrangement between M.N. and the Plaintiff’s parents as a matter of convenience as the families lived on the same street. For much of the same reason, the Plaintiff’s parents consented to M.N. driving her to and from school each day.

When the Commanding Officer was advised by M.N. that he was driving the Plaintiff from cadets, he advised M.N. to obtain

the consent of her parents as this was outside the role of an officer or instructor. [ 90 ] As was previously stated, the sexual abuse was not related to intimacy inherent in the cadet program.

The aim of the cadet program is clearly set out in publications by the Department of National Defence, which states: 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). [ 91 ] The Plaintiff has failed to establish that the Crown Defendants conferred meaningful and significant power over her.

The cadet corps. was a voluntary club or association where the cadets were absolutely free to discontinue their attendance and involvement, as did the Plaintiff in April 2010. As well, similar to the members of the Boys’ and Girls’ Club in Jacobi , they went home to their parents after the meetings concluded. [ 92 ] While the issue of inherent vulnerability of children will always arise in instances of their abuse, I have found that the Crown Defendants took steps that a reasonable employer would have done in terms of recruiting and supervising M.N.

However, in this case, the vulnerability did not provide the “strong link” between the operations of the cadet organization and the sexual assaults committed by M.N. as employee ( Jacobi at para. 86 ). The present situation is not similar to the situation of emotionally troubled children in a residential facility as reviewed in Bazley . [ 93 ] The Plaintiff did not exhibit any particular vulnerability. In her letter to her father and in her statements to the police, she demonstrated self-confidence and her self-esteem intact.

When she was questioned by the police as to her not being detected leaving and returning to school, she stated, “People are kind of stupid sometimes.” On another occasion, she told the interviewing officer that her high academic standing gave her preferential treatment such as using the “teachers’ and staff doors” to exit the school quickly during lunch time, unnoticed by the students and teachers. [ 94 ] In Gorsline , the court applied the principles set out in Bazley and Jacobi and declined to impose vicarious liability on a school board for sexual assaults perpetrated by a teacher as there was no “significant connection” between the duties and his wrongdoing.

While it was recognized that the teacher’s work gave him opportunity to abuse his authority, his duties did not require intimate contact similar to Bazley . In the present case, it was not part of M.N.’s duties to transport a student to and from cadets. Similar to M.N. providing rides to the Plaintiff travelling to and from school each day, transporting her to and from cadets one or two times per week was an arrangement made with the agreement of her parents.

Similarly, as the plaintiff in Gorsline lived with his parents, “the compelling parent-child bond” was not displaced (at para. 76). [ 95 ] The Supreme Court of Canada in K.L.B reaffirmed that the plaintiff must establish that the wrongdoing is sufficiently connected to the wrongdoer’s role as employee so that the conduct can be regarded as a materialization of the risks created or enhanced by the enterprise. The Plaintiff in these proceedings has failed to establish this by evidence or by argument. [ 96 ] Similarly, the Supreme Court of Canada in B. (E.) v.

Order of the Oblates of Mary Immaculate (British Columbia) , 2005 SCC 60 , held that vicarious liability should not be imposed against the administration of a residential school relating to sexual assaults on a student by the school baker. The student was lured to the employee’s room, in some cases by the promise of candy, and in other cases by threats.

In finding that vicarious liability should not be imposed, the court held that the strong connection test could not be satisfied in view of the baker’s role at the residential school. [ 97 ] Similar to the factual background in Jacobi , the opportunity that was afforded M.N. to abuse cadets was indeed slight. The program was carried out in the presence of the members of the cadet corps. with a number of instructors and volunteers present.

The abuse by M.N. only became possible through his efforts to carry out these activities by isolating the Plaintiff from the public including from the members of the cadet corps. As noted, the sexual activity occurred at times and places unconnected with the cadet program. [ 98 ] In A.B. v. C.D , the British Columbia Supreme Court found that the school board was not vicariously liable for seven incidents of sexual contact with a student by a teacher on the school premises.

Although the board had provided the teacher with the opportunity to spend time with the student, the opportunity was not significant as the teacher’s duty did not require intimate contact. [ 99 ] This court in John Doe v. Avalon East School Board , 2004 NLTD 239 , reviewed the Bazley and Jacobi framework in a school environment. There, the court found the school board to be vicariously liable for the sexual assault committed by a teacher during school time. The court followed the reasoning set out in A.B. v. C.D. and Gorsline , but came to a different result.

Of key importance, in Avalon East the teacher’s role allowed him to remove the student from the class to be instructed alone, effecting the teacher a high degree of trust. As well, the wrongful act was considered to be directly connected with his responsibility as a teacher. The judge found that those factors distinguished the case from Gorsline and A.B. v. C.D. [ 100 ] The Supreme Court of Canada in Bazley and Jacobi held that where sexual abuse taken outside the employment setting and outside the hours of work, such factors will negate a finding of vicarious liability.

The court stated in Bazley at paragraph 45 : 45 … The mere fact that the wrong occurred during working hours or on the jobsite may not, standing alone, be of much importance; the assessment of material increase in risk cannot be resolved by the mechanical application of spatial and temporal factors. 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. [ 101 ] In the present case, there were two incidents of minor sexual touching within the cadet environment which occurred after the

Plaintiff and M.N. had commenced the sexual relationship outside the place and time of the cadet activities. In Jacobi , the court found that such occurrence would be insufficient to impose vicarious liability. The majority stated at paragraph 84: 84 … 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. [ 102 ] In conclusion, I find that the Plaintiff’s claim that the sexual acts are sufficiently related to conduct authorized by the Crown Defendants is overstated and exaggerated. The sexual relationship between M.N. and the Plaintiff was initiated and conducted outside the facility used by the cadets and outside the time of the scheduled events.

The meetings for sexual activity were planned from cell phones, home phones, text messages, emails (including those from M.N.’s work), having no involvement with the cadets or the Crown Defendants. The enterprise provided by Canada was exercised in the presence of approved volunteers and carefully vetted instructors and officers. M.N.’s abuse was perpetrated by his hiding the nature of his conduct from the public at large including from teachers, students, parents and police. No one in the cadet corps. knew of the relationship.

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. [ 103 ] The claim of vicarious liability against Canada is therefore dismissed. no claim against canada [ 104 ] As the claims in negligence, fiduciary duty, non-delegable duty and vicarious liability are dismissed, the entire action against Canada (including the Second Defendant, Fourth Defendant and Fifth Defendant) is accordingly dismissed with costs. damages against first defendant [ 105 ] Damages must now be assessed against the First Defendant related to the Default Judgment entered on October 3, 2013.

Dr. Jeffrey Cunningham [ 106 ] Dr. Jeffrey Cunningham gave evidence on behalf of the Plaintiff. He is a registered psychologist practicing in St. John’s. He was contacted by the Plaintiff’s lawyer at the direction of the Plaintiff who apparently found the psychological help arranged through family to be ineffective. [ 107 ] The Plaintiff attended at Dr. Cunningham’s office for a total of approximately 30 sessions from May 31, 2013 to August 25, 2015. Dr.

Cunningham concluded that the Plaintiff met the criteria for post-traumatic stress disorder (PTSD). [ 108 ] In his reports and in the first part of his evidence, Dr. Cunningham was asked by the Plaintiff’s counsel about the allegations of sexual activity reported by the Plaintiff when she was 12 or 13 years old relating to events when she was eight or nine years of age. He said that this was discussed at length with the Plaintiff over a number of sessions. In her initial reporting to Dr.

Cunningham, she disclosed that at age 12 she was experiencing “disturbing, surreal perception of her body covered in blood, including her pubic region.” At age 13, according to Dr. Cunningham in his report of February 13, 2015, she interpreted these visions as having been raped several times by an unknown person. She further said that she was not aware of who first interpreted these visions as being related to sexual assaults. However, on the first day of trial she told Dr.

Cunningham of the role played by the online “counsellor” named Jack. [ 109 ] This unusual and troubling event or perceived event was disclosed to her parents, police and medical practitioners in August 2009 just approximately four months prior to the commencement of her relationship with M.N. However, Dr. Cunningham, in his reports and his evidence at trial, was quite adamant that this episode did not give rise to any symptoms of PTSD or was otherwise associated with the Plaintiff’s psychological condition when assessed by him. This issue will be reviewed in more detail later. [ 110 ] In

summary, Dr.

Cunningham concludes that the Plaintiff has severe PTSD, “with marked functional impairments to social functioning, personal well-being and quality of life.” This diagnosis is based upon three considerations: (1) the results of the Clinician- Administered Post-traumatic Stress Disorder Scale (CAPS) in which respondents answer questions concerning the level of symptoms concerning potentially traumatic events; (2) the Plaintiff denied past or current PTSD symptoms related to her previous sexual abuse disclosed when she was 12; and (3) the non-verbal behaviour during the CAPS interview displayed intense stress normally associated with PTSD. [ 111 ] This aspect of the claim will also be discussed later in conjunction with the expert evidence provided by Canada. [ 112 ] The Plaintiff had last seen Dr.

Cunningham on August 25, 2015. Reference was made to its costs and the cost of travel as a major factor in discontinuing the consultations. In his report of February 13, 2015, Dr. Cunningham recommended one further year of psychotherapy of 30 hours, then re-assessing for “optimal frequency of contact.” The Plaintiff did not attend 30 hours of psychotherapy. She no longer takes any medication except for mild anxiety, which she took at exam time at university. At trial, Dr. Cunningham then recommended that she continue psychotherapy once a week until she finishes a Ph.D. program at approximately age 30.

He reasoned that post-graduate years are very stressful and doctoral supervisors can be “such powerful authority figures” that the experiences could trigger episodes of PTSD. Dr. Donna McLennon [ 113 ] Dr. Donna McLennon, a registered psychologist, assessed the Plaintiff on April 25 and 27, 2016, at the request of the Crown Defendants. An interview and various tests were conducted with the Plaintiff. However, Dr. McLennon concluded that due to the nature of the current assessment findings, a definite opinion on the Plaintiff’s symptoms, diagnosis and prognosis could not be provided due to

problems with the overall data. She stated: “In

summary, a valid psychological profile could not be established due to lack of convergence or inconsistencies within the data set.” [ 114 ] Dr. McLennon noted the symptomology indicated in the findings of three tests would ordinarily reflect in “not only a clear pattern of anxiety but a level of symptomology that would significantly impair functioning.” However, the background information provided by the Plaintiff, on the contrary, indicates a high level of functioning in all aspects of her life, i.e. personal, social, academic, employment, and sports and leisure. Accordingly, Dr.

McLennon observed that the Plaintiff was experiencing high levels of functionality and success in most, if not all spheres of her life. [ 115 ] According to Dr.

McLennon, the medical and psychological criteria to satisfy a diagnosis of anxiety spectrum disorders including PTSD as set out in the Diagnostic and Statistical Manual of Mental Illness (DSM) and as PTSD, as defined in DSM IV and V, criteria F and G, involves “the disturbance causes clinically significant distress or impairment in social, occupational and other important areas of functioning.” In view of the Plaintiff’s high level of social, occupational and other areas of functioning, the criteria, according to Dr.

McLennon, does not appear to be satisfied. [ 116 ] With respect to social functioning, the Plaintiff advised Dr. McLennon that she has a number of friends including some close friends. She reported to Dr. McLennon having an intimate sexual relationship two months prior to the interview. Since high school, she had a year-long relationship and has continued to date.

She is presently on good terms with her father, mother and extended family. [ 117 ] I have previously reviewed her occupational, academic and extracurricular functioning. analysis – damages [ 118 ] It is not disputed that M.N. committed a serious criminal and morally reprehensible act in having a sexual relationship with the Plaintiff. [ 119 ] One issue in these proceedings was whether the Plaintiff had experienced similar symptoms previously to those said to be disclosed in relation to the abuse by M.N.

The Crown Defendants questioned the Plaintiff’s medical and psychological health prior to her relationship with M.N. Of particular interest was the Plaintiff’s initial claim that she was raped and abused when she was eight or nine years old. As indicated, Dr. Cunningham is of the opinion that the Plaintiff is suffering from PTSD which was solely caused by her relationship with M.N. Further, in his evidence he places reliance on the Plaintiff’s assurance that she denied past or current PTSD symptoms related to her perceptual event at age 12 or any other life events during the CAPS interview. [ 120 ] Dr.

Cunningham’s understanding is not supported by the evidence. The Plaintiff testified that “the perceptual event” arose when she commenced feeling upset about “things” but did not know the reasons for this. She was experiencing tension within her family mainly relating to her father and brother.

The Plaintiff was also being troubled by nightmares, which have been referred to as an obvious symptom of PTSD. [ 121 ] In the Plaintiff’s medical charts from her family physician, a notation of March 9, 2009, approximately eight months prior to the commencement of the relationship with the M.N., reference is made to her problem with sleep. Her physician recorded that the Plaintiff was experiencing decreased sleep over a number of months. He refers to her having difficulty getting to sleep and notes that she is suffering from anxiety.

On her December 4, 2009, visit to her physician just prior to her sexual activity with M.N., the Plaintiff again complained of difficulty with sleep as she says that it is restricted to five hours nightly. She also complained of headaches. [ 122 ] In his reports and evidence dealing with the effects of M.N.’s sexual relationship with the Plaintiff, Dr. Cunningham refers to the Plaintiff’s difficulty initiating sleep, stress symptoms such as headaches at the onset of anxiety, and more importantly, the presence of flashbacks as being consistent with the symptoms normally experienced by persons suffering PTSD.

As indicated, Dr. Cunningham was under the impression that the Plaintiff denied past or current PTSD symptoms related to any other life event. This assumed denial played an important role in Dr. Cunningham’s opinion that the abuse by M.N. gave rise to PTSD and that the abuse was the sole cause. [ 123 ] The “perceptual event” of abuse when the Plaintiff was eight or nine years old was first raised by Dr. Cunningham in his report and then by the Plaintiff in her evidence. Dr.

Cunningham also dealt with the matter in his evidence and confirmed that he had not been advised of the complete account of the episode until the first day of trial. When Dr. McLennon attempted to inquire about this matter the Plaintiff responded that she had “no recollection” of these events. As she did provide details of this to Dr. Cunningham for his report, for the 2014 discovery examination, and for trial, her lapse of memory at the time of Dr. McLennon’s assessment cannot be accepted as credible. [ 124 ] Dr.

McLennon, when exploring suicidal ideation, indicated the Plaintiff denied any past or present suicidal ideation or interest. The Plaintiff admitted that she had overdosed on muscle relaxants and sleeping pills but that this occurred resultant from having had developed a tolerance to this medication, and she most likely mistakenly took more than the recommended dosage. [ 125 ] However on the Personality Assessment Inventory (PAI), the profile is suggestive of significant suicidal ideation, which is indicative of persons who are anxious, depressed and unsupported by the people around them.

She stated on the PAI that it was mainly true that she had thought about ways to kill herself for a long time and contemplated what she would say in a suicide note. The Anxiety- Related Disorders Scale score on the PAI indicated the Plaintiff to be an individual associated with multiple anxiety-disorder diagnoses and broad impairment associated with anxiety and severe psychological turmoil. Dr. McLennon found that the results of the PAI and two other tests were clearly inconsistent with the high level of functionality in all aspects of the Plaintiff’s life. [ 126 ] Dr. Cunningham took issue with Dr.

McLennon’s opinion that the Plaintiff’s symptoms do not appear to meet diagnostic criteria for PTSD. This opinion, according to Dr. Cunningham, was inappropriate as Dr. McLennon had generally stated that due to the findings of the various assessments, she could not provide an opinion of the Plaintiff’s symptoms, diagnosis, and prognosis. I do not agree with his position. Dr.

McLennon found that the inability to provide a specific opinion was the result of the findings of the various assessments, which indicated a lack of convergence or inconsistencies in the overall data produced, together with a guarded and defensive reaction to information sharing. This raised the possibility that the Plaintiff may have attempted to manipulate the results of

the assessment process. [127] Dr. McLennon acknowledged that a forced participation in the assessment process can give rise to a guarded and defensivemanner of responding. As well, the Plaintiff showed frustration in having to take

part in the assessment. Nevertheless, in spite of thetest results Dr. McLennon was entitled to provide an opinion that the background information did not support the diagnosis of extremePTSD indicated by Dr.

Cunningham. [128] The assessment of the impact of the abuse by M.N. was complicated by a number of other traumatic events in her life: thebreakdown of her parents’ marriage, the death of her grandfather who was her primary caregiver during her childhood, and the disclosureat the age of 12 relating to past allegations of abuse. non-pecuniary and aggravated damages [129] The purpose and objective for non-pecuniary damages is to provide consolation and solace to the Plaintiff for such matters aspain, suffering, inconvenience and loss of enjoyment of life.

Non-pecuniary losses are not meant to compensate a victim for actuallosses. However, the Court must arrive at a sum that is moderate, as well as reasonable to both parties. [130] Damages in other cases can be of assistance and guidance but each case varies depending on the facts and circumstances. [131] On the issue of quantum of non-pecuniary and aggravated damages and the related principles, the Plaintiff referred to: ⋅ John Doe v. O’Dell (2003), (ON SC), 230 D.L.R. (4th) 383, 2003 CarswellOnt 3456 (Sup. Ct.); ⋅ G. (B.M.) v. Nova Scotia Attorney General, 2007 NSCA 120; ⋅ T. (K.) v.

Vranich, 2011 ONSC 683; ⋅ M. (K.M.) v. Roman Catholic Episcopal Corp. of the Diocese of London in Ontario, 2011 ONSC 2143; ⋅ M. (D.) v. W. (W.), 2013 ONSC 4176; ⋅ Shaw v. Staples, 2013 ONSC 3290; ⋅ Rich v. Bromley Estate, 2013 NLCA 24; ⋅ Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130; ⋅ Norberg v. Wynrib, (SCC), [1992] 2 S.C.R. 226; and ⋅ Morrow v.

Outerbridge, 2009 BCSC 433. [132] The Plaintiff has argued that an appropriate award for non-pecuniary and aggravated damages would be $250,000. [133] In the event that liability was found, the Crown Defendants referred to the following cases: Blackwater, AB v. CD, and O’Dell. [134] As the Crown Defendants denied liability, an appropriate damage award was not put forward by counsel. [135] The following factors are considered relevant in making awards for damages in sexual assault in this case: (

i) The assaults consisted of in excess of 30 incidents over a period of four months. (ii) The nature of the assault was vaginal intercourse and oral sex with hugging, kissing and touching. (iii) At the time the incidents commenced the Plaintiff was 13 years old, and 14 years of age when they terminated. (iv) The Plaintiff was vulnerable to M.N. because of their respective ages. He was approximately 33 years of age when therelationship commenced. However, unlike a teacher, he had no particular power over her. She was not vulnerable to being forced tospend time with him. The Plaintiff was able to call on her father to assist in terminating the relationship. (

v) There were aggravating aspects to the relationship, including: M.N. was a neighbor of the Plaintiff’s family, the father of hergood friend, and a friend of her father. As well, the Plaintiff’s father trusted M.N. to take the Plaintiff home from cadets as well as to andfrom school. (vi) M.N. did not use any force or violence.

(vii) The numerous sexual assaults and encounters perpetrated by M.N. had a serious psychological effect on the Plaintiff. At trial, she was asked by her counsel to relate the consequences of M.N.’s actions. She spoke about living in a relatively small community where rumors, often false, travel fast giving rise to unfair feelings of shame and guilt. The Plaintiff felt further alienated from members of her family as she felt that they may be holding her responsible, even though that was not the situation. After the relationship she had problems with sleeping and the occurrences of headaches.

The Plaintiff did not refer to nightmares or flashbacks, but these occurrences were dealt with by both psychologists in their reports and evidence. [ 136 ] In diagnosing the Plaintiff with PTSD, Dr.

Cunningham, using the CAPS criteria, rated her symptoms as “severe,” which indicates “severe distress or impairment, limiting functioning even with effort.” Less serious categories include “mild with minimal distress or impairment” and “moderate but able to function satisfactorily with effort.” [ 137 ] That said, rather than getting distracted on classifying the nature of the Plaintiff’s conditions to assess compensation, greater concern and emphasis should be placed on the results of the wrongs inflicted on her. On this issue, I find the evidence of Dr. McLennon more helpful and reasonable to that of Dr.

Cunningham’s. Furthermore, I find that Dr. McLennon’s opinion is more consistent with the whole of the evidence including that of the Plaintiff. Both their evidence confirm the high level of function and achievement following this unfortunate relationship. As well, a review of her school progress reports from 2009 – 2012 confirms a consistent high level of achievements with no decrease in marks. [ 138 ] Without minimizing the serious nature and the results of M.N.’s actions, certain inconsistencies in the Plaintiff’s evidence cannot be overlooked.

I have already referred to the Plaintiff’s confirming the allegations of rape at a time when she realized that these events did not happen. As well, she made misleading statements to Dr. McLennon and failed to be fully candid with Dr. Cunningham. [ 139 ] On that issue, the evidence disclosed that both psychologists administered several standardized tests and assessments.

While the findings from these evaluations are, no doubt, generally helpful for the purpose of diagnosis and treatment, they may be less so for the purpose of a guide for compensation, especially the assessments based upon self-reporting. [ 140 ] The Crown Defendants, in the event of liability, had argued that damages should be reduced because of the Plaintiff’s psychological issues prior to her relationship with M.N.

Reference is made to the Plaintiff’s allegation when she was 12 years old that she was repeatedly raped at the age of eight or nine; followed by her denial of this event when she was approximately 18 years old; then by her assertion to Dr. McLennon that had no memory of the incident or having made the allegations. This, it is alleged, raises questions regarding the Plaintiff’s prior mental health.

There was some evidence that she received counselling from Child Youth and Family Services regarding this matter around August 2009 but the Court was not told of the details. [ 141 ] In the absence of more evidence it is difficult to deal with the matter in terms of the concepts of the “thin-skull” plaintiff and the “crumbling-skull” plaintiff, as suggested by Defence counsel. These prior allegations made by the Plaintiff can be considered in conjunction] with all the evidence concerning her background and life experiences.

It is noteworthy that in August 2009, while these revelations gave rise to a crisis within the family with the intervention of the police, social services and medical services, the Plaintiff continued to function in all aspects of her life with impressive results. [ 142 ] In

summary, the actions of M.N. have had a serious and traumatic effect on the Plaintiff. He took advantage of a young adolescent for his own gratification. His abuse was both sexual and emotional and will have lasting effects. Unfortunately, the Plaintiff has also had to endure the impact of the previous traumatic events in her life.

To her own credit, she has shown a high degree of resiliency in the functioning of all aspects of her life in spite of these setbacks. [ 143 ] In all the circumstances, an appropriate award is $110,000 which includes $20,000 for aggravated damages. special damages [ 144 ] The Plaintiff claims $9,337.43 in special damages in respect of psychological testing as follows: Professional Services 2013 - $2,060.00 2014 - 1,950.00 2015 - 690.00 Travel to Accommodation 2013 - $1,350.51 2014 - 3,074.10 2015 - 212.82 TOTAL $9,337.43 [ 145 ] While the Plaintiff was not referred to a Psychologist, Dr.

Cunningham confirmed that it was necessary and that the Plaintiff found the sessions helpful. The expenses for his services are reasonable. [ 146 ] I do have some concern about the travel and accommodations. Dr. Cunningham practices some distance from the Plaintiff. He was chosen directly by the Plaintiff as the result of an online search. I am not totally convinced that she could not find a competent psychologist in her area. However, she was concerned that her visits to a psychologist in her area would become known, giving rise to a privacy concern. I will therefore allow these expenses.

future economic loss [ 147 ] The Plaintiff claims the sum of $350,000 for future economic loss. The evidence does not substantiate the basis for this award. To date, there is no evidence that the Plaintiff missed any significant time from school or from the various summer and part-time jobs obtained by her. Nor is there any evidence that her entry into the job market will be delayed. Therefore, this aspect of the claim is dismissed. future care costs [ 148 ] The Plaintiff last received psychotherapy on August 25, 2015. In 2015, she had five consultations.

Since that time, her medical requirements were overseen by her family doctor. She was not referred to her previous psychiatrist whom she had seen once before, and she did not follow up for a subsequent appointment. At the time of trial and the

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