R. v. Cummings, 2019 NLCA 59

John Doe (G.E.B. #113) v. Canada (Attorney General) (cite as: 2019 NLCA 59, 5 C.A.N.L.R. 62) John Doe (G.E.B. #113) (applicant/appellant) v. Canada (Attorney General) (first respondent) and C.M. (second respondent) (18/81 & 19/31) Indexed As: John Doe (G.E.B. #113) v. Canada (Attorney General) 2019 NLCA 59 5 C.A.N.L.R. 62 Court of Appeal of Newfoundland and Labrador Goodridge J.A. September 18, 2019

Summary: John Doe applied to consolidate his appeal with another matter before the Court. The appellant in the other matter, Jane Doe, supported the application for consolidation. Both matters involved personal injury claims flowing from sexual abuse. The Attorney General of Canada was the respondent in both matters and opposed the application. Both appeals involved issues pertaining to vicarious liability and damages. Held: Application dismissed. Goodridge J.A.: The application for consolidation was dismissed.

The test for vicarious liability, specifically the “close connection” element of the test that examines the connection between the tasks assigned to an employee and the wrongdoing the employee committed must be applied to the specific facts of each particular case. The appeals involved different perpetrators of abuse, and the circumstances surrounding the abuse committed by each perpetrator differed greatly. The issue of damages was also unique to each claimant and did not engage common facts. The appeals were distinct in many respects and consolidation was therefore inappropriate. Cases cited: R. v.

Cummings, 2012 NSCA 52 Morris v. Law Society of Newfoundland and Labrador , 2017 NLCA 50 Counsel: Allison S. Conway and William A.F. Hiscock, for the applicant/appellant; Corinne Bedford and Sarah Drodge, for the first respondent; Jerome P. Kennedy Q.C., for the second respondent. The application was heard on September 10, 2019 by Goodridge J.A. The following memorandum of disposition was filed on September 18, 2019 by Goodridge J.A. ______________________________________________________________

MEMORANDUM OF DISPOSITION Goodridge J.A.: APPLICATION TO CONSOLIDATE APPEALS [ 1 ] This is an application by the appellant to consolidate this matter with another matter currently before this Court, namely, Jane Doe v. M.N., 201801H0081. Jane Doe (who has engaged the same counsel as John Doe) supports the consolidation application. The Attorney General of Canada (Crown), a respondent in both matters, opposes the application. [ 2 ] The appellant argues that the appeals involve common questions of law and fact, and that consolidation will result in a more efficient and expeditious disposition of the matters.

The Crown argues that there is little overlap on the questions of law and fact, that there are no efficiencies gained by consolidation, and that consolidation will confuse two distinct matters engaging different factual backgrounds. [ 3 ] The appeals involve two personal injury claims flowing from sexual abuse. The perpetrators (employees of the Crown involved with cadet training) admit that they engaged in intimate sexual activity with the appellants while the appellants were members of the cadets.

The findings of fact, at both trials, indicate that the sexual activity occurred mostly outside the environment of the cadet program. The issues at the John Doe trial were: (1) whether the Crown, as sponsor for the cadet program and employer of the perpetrator, was liable in negligence directly, (2) whether the Crown was liable vicariously, and (3) damages.

The same three issues arose in the Jane Doe trial plus two additional issues: (4) whether the Crown owed a fiduciary duty to Jane Doe, and if yes, was it breached, (5) whether the National Defence Act , which authorizes the Minister to establish a cadet program, created a non-delegable statutory duty with the effect that Crown remains liable for any negligence of its employees.

There are different respondents on both matters, but, as noted above, the Crown is a common respondent on both appeals. [ 4 ] At each trial, the judge dismissed all claims against the Crown. [ 5 ] The appellants advanced several grounds of appeal but now indicate that they will be focusing on only three grounds, namely: fiduciary duty, vicarious liability, and damages. [ 6 ] The issue of fiduciary duty arose only in the Jane Doe matter. It is not a common issue. [ 7 ] The issue of vicarious liability involves the application of facts to the test for determining vicarious liability.

There are significant differences comparing the facts of each matter. The different perpetrators held different positions within different cadet organizations. The “close connection” element of vicarious liability, which examines the tasks assigned to the employee and the wrongful acts, differs greatly. The relationship evidence between each perpetrator and the Crown differs greatly. Vicarious liability is not a common issue because of these significant differences. [ 8 ] The issue of damages is unique to each claimant. Damages will differ in nature, severity, and duration.

It is not a common issue and it does not engage common facts. [ 9 ] This Court is tasked with reviewing two different decisions, made by different judges, based on different facts, with the tortious acts grounding each claim occurring almost 40 years apart. The circumstances surrounding the abuse committed by each perpetrator are significantly different. The standards of the day relevant to each case (comparing 1969 for John Doe with 2009 for Jane Doe) are different. In R. v.

Cummings , 2012 NSCA 52 , Hamilton J.A., in dismissing an application to consolidate two appeals involving the same appellant, stated at paragraph 14, that the “function [of a Court of Appeal] is generally to review a specific decision of a specific judge or tribunal for error.” She also noted, as I have above, that the appeals did not raise common questions of fact or law, and that they were arising from decisions of different judges given at different times. [ 10 ] In Morris v.

Law Society of Newfoundland and Labrador , 2017 NLCA 50 , a m ember of the Law Society of Newfoundland and Labrador facing disciplinary proceedings relating to a complaint of professional misconduct, sought consolidation of two appeals. The decisions under appeal arose from separate Interlocutory Applications, one seeking dismissal of the complaint, and one seeking various jurisdictional, Charter , and prerogative relief, and a stay of the disciplinary proceedings.

Hoegg J.A. denied the request for consolidation, stating at paragraph 9 that “while there was considerable overlap in the issues, the two appeals were distinctly different in some respects”. [ 11 ] In my view, the John Doe appeal and the Jane Doe appeal are distinctly different in many respects, and that consolidation is not appropriate. CONCLUSION [ 12 ] The application for consolidation of appeals is dismissed. [ 13 ] If the parties see any advantage to scheduling the appeal hearings during the same week, or close in time, then that will not be an issue.

It will merely be a matter of the parties coordinating dates with the registry after the appeals have been perfected. Application dismissed.