2021 NLCA 21, 2021 NLCA 21

John Doe (G.E.B. #113) (appellant) v. Attorney General of Canada (first respondent) and C.M. (second respondent) (19/31) Indexed As: John Doe (G.E.B. #113) v. Canada (Attorney General) 2021 NLCA 21 6 C.A.N.L.R. 502 Court of Appeal of Newfoundland and Labrador Green, Hoegg and O’Brien JJ.A. April 13, 2021

Summary: John Doe claimed negligence and vicarious liability against the Attorney General of Canada in relation to sexual abuse committed byC.M. at a cadet camp. John Doe was a member of the Air Cadets and C.M. was a training officer. While at camp, C.M. held thetemporary rank of captain and taught a specialized course. The trial judge found that, while an incident of abuse had occurred at camp,Canada was not vicariously liable since the abuse was not sufficiently connected to C.M.’s assigned tasks. John Doe appealed the judge’sdecision respecting the issue of vicarious liability.

He argued that the judge erred by importing negligence considerations into thevicarious liability analysis and that the judge erred by stating that one incident of abuse was not enough to trigger a finding of vicariousliability. Held: Appeal dismissed. Hoegg J.A. (Green and O’Brien JJ.A. concurring): Case law provides guidance regarding the legal principles with respect to vicariousliability (paragraphs 29-40). While the judge did import negligence considerations into her vicarious liability analysis, the judge made no palpable and overridingerror in reaching the conclusion she did.

The judge considered the factors identified in the relevant jurisprudence to determine whetherC.M.’s duties were sufficiently connected to his wrongdoing and her conclusion was consistent with the established law on this point.The connection between C.M.’s duties as an officer and instructor at the camp was not of sufficient strength to justify imposing vicariousliability on Canada (paragraphs 42-63). The judge’s comments respecting the sole incident of abuse was unfortunate, since the frequency of abuse is not relevant to the vicariousliability analysis.

However, this comment was not the judge’s ultimate basis for her determination that Canada was not vicariously liable.The judge otherwise conducted her analysis in a way that was consistent with the law of vicarious liability. To the extent that the judge’sstatement was an error, it was not an overriding error because it did not determine the result (paragraphs 64-68). Cases cited: Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534, 62 B.C.L.R. (3d) 17 John Doe (G.E.B. #25) v. Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27 671122 Ontario Ltd. v.

Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403 Jacobi v. Griffiths, (SCC), [1999] 2 S.C.R. 570, 63 B.C.L.R. (3d) 1 (S.C.C.) E.B. v. Order of the Oblates of Mary Immaculate (British Columbia), 2005 SCC 60, [2005] 3 S.C.R. 45 Rich v. Bromley Estate, 2013 NLCA 24

Counsel: William A.F. Hiscock and Allison S. Conway, for the appellant; Corinne Bedford and Sarah Drodge, for the first respondent; Jerome P. Kennedy Q.C., for the second respondent. The appeal was heard on October 16, 2020 before Green, Hoegg and O’Brien JJ.A.

The following judgment was filed on April 13, 2021 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [ 1 ] This appeal involves whether Her Majesty the Queen in Right of Canada as represented by the Minister of Defence ( Canada ) is vicariously liable for the sexual abuse suffered by an air cadet at the hands of an officer in his squadron during the early 1970s. [ 2 ] At trial, the cadet, referred to herein as John Doe, claimed against Canada in negligence and in vicarious liability for the officer’s wrongful conduct.

Canada third partied the officer, referred to herein as C.M. John Doe’s claims against Canada were dismissed as was Canada’s claim against C.M. John Doe appeals only the dismissal of his vicarious liability claim. BACKGROUND [ 3 ] John Doe was a member of the 510 Lions Royal Canadian Air Cadet Squadron from 1969 to 1971, when he was 14 to 16 years old. The officer, C.M., was between 20 and 22 years old at the time. [ 4 ] John Doe and C.M. met shortly after John Doe joined cadets in the fall of 1969. In the course of driving John Doe home from cadet meetings, C.M. got to know John Doe’s family.

C.M. gave evidence that sometime in 1970 he approached John Doe’s father and asked him to share his expertise in the automotive field with the cadets of 510 Lions. The father agreed, and remained with the cadet organization in that capacity until 1980, several years after both John Doe and C.M. had left. Also in the year or so after C.M. and John Doe met, John Doe’s brother was born and C.M. was asked to be the baby’s godfather. [ 5 ] The first sexual incident between John Doe and C.M. occurred during the summer of 1970 at the cadet camp on the Greenwood base, in Nova Scotia. John Doe was 15 years old.

He had applied to go to the camp and he travelled to Greenwood, Nova Scotia with other cadets, C.M., and one other officer from 510 Lions. In her decision, the trial Judge commented that “[a] photograph of cadets taken at the time presented [C.M.] with the build of a grown man and [John Doe] appearing small and boyish” (at para. 8). [ 6 ] C.M. held the rank of lieutenant and was a training officer when involved with 510 Lions in St. John’s. However, at the Greenwood camp, he held the temporary rank of captain, and instructed the “projectionist” course.

The projectionist course was a specialized course, distinct from basic training requirements, and usually reserved for second-year cadets who had already completed basic training. [ 7 ] Although John Doe was a first-year cadet and 1970 was his first summer at cadet camp, he was enrolled in the projectionist course. Cadets enrolled in specialized courses were usually housed in rooms in the barracks, whereas first-year cadets were usually housed together in the hangars.

John Doe was unable to recall how it came to pass that he was enrolled in a specialized course normally reserved for second-year cadets or why he was housed in the barracks and not in the hangar with the other first-time campers. External evidence supported John Doe’s testimony that he was enrolled in the projectionist course and housed in the barracks in the summer of 1970. [ 8 ] It was during a weekend at Greenwood in 1970 when his roommate was not at camp when John Doe was first assaulted by C.M.

The Judge described the incident as follows: 16 [John Doe] testified that the first sexual encounter with [C.M.] took place one weekend night that summer in his barracks. He was asleep in his room and woke up to find [C.M.] 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 [C.M.’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. [ 9 ] John Doe testified that C.M. visited him in his barracks again that summer. He explained that after the assault he had wanted to go home but had no way to contact his parents. He said he was not going to class. He said C.M. visited him in his barracks and told him he could not go home because his dad would be disappointed in him and it would be expensive. He said C.M. encouraged him to write a speech which was required for the course. The Judge described John Doe’s testimony:

17 He testified that [C.M.] 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 that [John Doe] was avoiding. He recalled that [C.M.] 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. [John Doe] finished the speech and read it out in class.

By the end of camp, [John Doe] qualified for his projectionist licence. [ 10 ] The Judge noted C.M.’s evidence admitting the second barracks visit but saying that he was only encouraging John Doe to prepare a speech for the mandatory public speaking component of the projectionist course, and denying that he ordered John Doe to write the speech and that he had arranged for a curfew extension so that John Doe could work on his speech after curfew. [ 11 ] The Judge accepted that John Doe was sexually abused by C.M. at the camp and that C.M. had initiated the sexual activity.

She rejected C.M.’s denial that sexual activity with John Doe had taken place at Greenwood and C.M.’s contention that John Doe was not in the projectionist course or housed in the barracks in 1970.

The Judge also rejected C.M.’s characterization of the sexual activity between him and John Doe which he admitted, as being entirely for John Doe’s benefit, finding it to be “contrived and devoid of credibility” (at para. 19). [ 12 ] The Judge concluded: 25 Weighing the evidence of both, I am satisfied on a balance of probabilities that the [C.M.] initiated sexual touching while they were together in the barracks and I find that [John Doe] was sexually abused at the Greenwood Camp. .. . [ 13 ] Both John Doe and C.M. returned to 510 Lions in the fall of 1970, and John Doe was promoted to the rank of corporal.

During the 1970-1971 season, John Doe and C.M. spent a lot of time together. They continued a sexual relationship, although no sexual activity took place at cadets or during cadet outings. Rather, the sexual activity between them took place at C.M.’s mother’s home, which was close to John Doe’s home in St. John’s. John Doe liked C.M.’s mother, and spent time, including overnights, at their home. On overnights, John Doe slept downstairs with C.M. in C.M.’s separate sleeping quarters.

While the Judge found that John Doe did not initiate the sexual activity with C.M., she found that C.M. did not threaten John Doe at any time. [ 14 ] John Doe and C.M. also engaged in outside activities together, like attending a basketball game and going out for fast food. John Doe sometimes accompanied C.M. when C.M. was collecting rents from tenants of his father’s rental properties and when C.M. was setting up audio visual equipment for professors at Memorial University. As well, John Doe and C.M., along with other cadets, sometimes spent time at John Doe’s parents’ cabin.

There was no evidence that sexual activity took place at the cabin. [ 15 ] John Doe returned to cadet camp at Greenwood during the summer of 1971. He testified that no sexual activity occurred with C.M. at Greenwood that summer. John Doe said that in the summer of 1971 he was housed in the hangar with other cadets and that aside from seeing C.M. around the base, the only contact he could recall having with C.M. was when he injured his foot and C.M. visited him to inquire how he was doing. [ 16 ] C.M. and John Doe took a road trip together to New York after one of the Greenwood camps.

It was unclear whether this was in 1970 or 1971. John Doe had received permission from his parents to travel with C.M. as far as Halifax, but C.M. decided to drive on to New York. John Doe testified that during the trip he was forced to perform oral sex on C.M. by C.M. placing his hand on John Doe’s head while C.M. was driving. C.M.’s evidence was that the one time sex occurred on the road trip was an incident of C.M. masturbating John Doe.

C.M.’s evidence was rejected by the Judge as “fabricated to support his position that he never received any sexual gratification” from sex with John Doe (at para. 35). [ 17 ] John Doe left cadets in September, 1971. Sexual activity with C.M. continued, but on a declining basis. It occurred primarily at C.M.’s mother’s house. C.M. graduated from university in 1972 and moved to a community outside St. John’s to teach school where John Doe visited him from time to time. Their last sexual encounter took place there in 1973 after C.M. returned to his apartment from an evening out with his friends.

John Doe was nearly 18 years old at the time. [ 18 ] John Doe and C.M. kept in touch and they attended each other’s weddings in 1977 and 1978. C.M. and his wife moved out of the province shortly after they married. When they returned to Newfoundland to visit, they would see John Doe’s parents and sister. [ 19 ] In 2000 or 2001, John Doe contacted C. M. and asked to meet. They met during the summer when C. M. was visiting the province.

The Judge described the evidence respecting the meeting at paragraphs 45 and 46: 45 In 2000 or 2001, [John Doe] telephoned [C.M.] asking that they arrange to meet, mentioning in that call that he had been seeing doctors and wanted to talk. [C.M.] said that he "figured" that [John Doe] was seeking closure in relation to their previous sexual activity. He was visiting the province in the summer, and they agreed to meet then. [C.M.] testified that he came right out and said that if he had harmed [John Doe], he was very sorry and sought his forgiveness.

He referred [John Doe] 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 [C.M.] testified that it had been his wish to make amends to [John Doe] and achieve closure for them both.

They talked for about an hour and at the end, he said that [John Doe] told him that he forgave him. [C.M.] had no further contact with [John Doe] until he learned of the court proceedings in a call from the Attorney General's office in 2014. 46 [John Doe] recounted that while he had wanted closure, when [C.M.] started talking about the 12 steps, it felt like he was teaching him again and he called it off. [ 20 ] The Judge described John Doe’s eventual breakdown and what led to his decision to initiate legal proceedings: 47 Several years later in 2010, [John Doe] 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 [C.M.] 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 [John Doe] to hurt [C.M.’s] children. His sister responded in a similar fashion.

48 [John Doe] testified that everything changed when he saw the Oprah Winfrey Show. He joined a male sexual abuse survivor onlinegroup and testified that if he had money to do so, he would visit therapeutic places featured on the program for survivors of sexual abuse. [21] John Doe brought his suit against Canada alone. There is no explanation in the record for why he did not sue C.M.

Given theJudge’s findings, there is little doubt that had C.M. been a defendant in this litigation, he would have been found liable for sexuallyabusing John Doe – sexual abuse that had lasting effects on John Doe’s life and well-being (see para. 150 of the Judge’s decision). THE TRIAL DECISION [22] In her analysis of vicarious liability, the Judge identified the sufficiency of connection between C.M.’s assigned tasks and histortious conduct as the issue.

She instructed herself on the doctrine of vicarious liability, the policy considerations informing it, and thecourt’s requirement to investigate C.M.’s specific duties in relation to the factors set out by McLachlin J. in Bazley v.

Curry, (SCC), [1999] 2 S.C.R. 534, 62 B.C.L.R. (3d) 17, noting that actions which are only coincidentally linked to the tasks assigned byCanada to C.M. would not justify a finding of vicarious liability (at para. 116). [23] The Judge ultimately determined that Canada was not vicariously liable for C.M.’s wrongdoing, saying: The incident at Greenwood camp was outside the scope of [C.M.’s] role, deliberately hidden from others and was never reported by[John Doe] (para. 143). … Evidence to support the statement that John Doe was a particularly vulnerable teenager was not submitted in these proceedings….the aimof the cadet organization supported group activities and did require officers to engage in intimate aspects of cadet lives.

And that thesexual activities pursued by [C.M.] were not related to any enhanced opportunity or power relationship given to [C.M.] by [Canada] inhis role as training officer (para. 148). She concluded: In consideration of the law set out in Bazley and Jacobi and my assessment of the evidence herein, I conclude that the one incident ofsexual abuse occurring at the Greenwood Camp in 1970 was not sufficient to trigger vicarious liability on the part of the [Canada].

Thesexual acts were outside the scope of his duties and were hidden (para. 152). [24] Although the Judge did not find Canada vicariously liable for C.M.’s sexual assault of John Doe, she assessed provisionalgeneral and aggravated damages in the amounts of $135,000.00 and $11,000.00 for future care. She declined to award damages for pastand future economic loss, saying that the evidence failed to establish a causal link between John Doe’s claim for economic loss andC.M.’s tortious conduct.

ISSUES ON APPEAL [25] John Doe alleges that the Judge made two legal errors which caused her to conclude that Canada was not vicariously liable. First, he argues that the Judge intermingled negligence considerations with her vicarious liability analysis; second, he argues that theJudge reasoned that the one incident of sexual abuse at Greenwood was not sufficient to trigger the imposition of vicarious liability onCanada. [26] John Doe also appeals the Judge’s failure to provisionally assess his claim for economic loss, arguing that the Judge set thestandard of proof for its causation too high.

John Doe also argues that the Judge erred in relying on evidence from Canada’s causationexpert, Sean Fitzgerald, that was outside the scope of his expertise. [27] The central issue on appeal is whether the Judge erred in deciding that Canada was not vicariously liable for C.M.’s sexual abuseof John Doe. If this Court determines that the Judge did not err in finding that Canada is not vicariously liable, that is the end of thematter.

If this Court rules that Canada is vicariously liable, or orders a new trial on vicarious liability, then John Doe’s argumentsrespecting the Judge’s failure to assess damages for economic loss and her reliance on Mr. Fitzgerald’s evidence will have to bedetermined. STANDARD OF REVIEW [28] In John Doe (G.E.B. #25) v. Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27, this Court described howreview standards ought to be applied to an appeal respecting vicarious liability.

The Court explained that the doctrine of vicariousliability is a legal standard that must be correctly applied to a set of facts to determine if liability ensues. If the standard that a judgeapplies is not correct, a question of law arises, for which the review standard of correctness applies. If a judge errs in the application ofthe legal standard to the evidence, questions of mixed fact and law arise, for which the review standard of palpable and overriding errorapplies, unless the error is an extricable error of principle, in which case the review standard is correctness.

A judge’s failure to considerrelevant evidence or finding facts and drawing inferences which are plainly wrong or unsupported by evidence are also reviewable on thepalpable and overriding error standard (John Doe (G.E.B. #25), at paras. 39-43). THE LAW [29] Vicarious liability is not a stand-alone tort. It is a relationship-based doctrine that holds one person responsible for themisconduct of another because of the relationship between them (671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59,[2001] 2 S.C.R. 983 at para. 25).

The long-standing doctrine is said to rest on the enterprise theory of liability, which is that damagesthat flow from the risks an enterprise puts into the community should be borne by that enterprise if and when the risks materialize. Stated another way, the person who creates a risk of harm should bear the loss of that risk ripening into actual harm (Bazley, at para.30).

[30] Early application of the doctrine of vicarious liability restricted its application to imposing liability on a master for the actions ofhis or her servant or on an employer for the actions of his or her employee.

However, application of the doctrine has evolved in recentyears to enable the imposition of vicarious liability on enterprises when those who work on the account of the enterprise or carry out theobjectives of the enterprise commit wrongs which can be fairly regarded as risks of the enterprise, regardless of their employment status. [31] The doctrine is driven by the twin policies of fair compensation to those who suffer losses flowing from risks of the enterprise(on the basis that the enterprise is most often in a better position than the individual tortfeasor to compensate victims), and deterrence offuture harm (on the basis that enterprises are often in a position to manage the risks of accidents and intentional harms that flow fromtheir operations by efficient organization and supervision).

In these regards, holding an enterprise liable for the wrongs of those whocarry out its objectives can accord with notions of fairness and encourages the enterprise to manage risks and thereby reduce future harm(Bazley at paras. 30 and 32).

These policy objectives will only be met if the relationship between the enterprise and the wrongdoer isclose enough and if the connection between the wrongdoer’s assigned tasks and the wrongs committed is sufficiently enough to warrantthe imposition of vicarious liability (John Doe (G.E.B. #25), at para. 48; Sagaz, at para. 35; and Bazley, at para. 37). [32] The Supreme Court of Canada decision in K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403 is instructive.

K.L.B.concerned whether the government of British Columbia was vicariously liable for the abuse of children by foster parents in whose careB.C. had placed the children. In K.L.B. the Court determined that vicarious liability did not ensue because the relationship between thegovernment of British Columbia and the foster parents was too remote to warrant its imposition. In K.L.B., the Court succinctlysummarized the two-part test for vicariously liability: 19 To make out a successful claim for vicarious liability, plaintiffs must demonstrate at least two things.

First, they must show thatthe relationship between the tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim forvicarious liability appropriate…Second, plaintiffs must demonstrate that the tort is sufficiently connected to the tortfeasor's assignedtasks that the tort can be regarded as a materialization of the risks created by the enterprise… [33] In Sagaz, K.L.B. and John Doe (G.E.B. #25), the focus was on whether the relationship between the enterprise and the tortfeasorwas sufficiently close to warrant imposition of vicarious liability.

In Bazley, there was no relationship issue as the tortfeasor was anemployee of the children’s home alleged to be vicariously liable for the sexual assaults the employee had perpetrated on the childresidents. [34] Rather, the focus in Bazley was on the connection between the employee’s assigned tasks and his wrongful conduct.

In thisregard, McLachlin J. explained that the imposition of vicarious liability is generally appropriate when there is a significant connectionbetween the creation or enhancement of a risk that has been introduced into a community by an enterprise and the wrongs that accruefrom that risk, even if the wrongs are unrelated to the enterprise’s objectives. She set out a non-exhaustive list of factors to guidedetermination of whether such a significant connection exists (at para. 41): (

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. [35] Justice McLachlin also explained how time and place inform whether an enterprise materially increases a risk of harm, anddescribed how they can relate to the materialization of that risk (at para. 45): …[t]ime and place arguments may also be relevant in particular cases. The mere fact that the wrong occurred during working hours oron the jobsite may not, standing alone, be of much importance; the assessment of material increase in risk cannot be resolved by themechanical application of spatial and temporal factors.

This said, spatial and temporal factors may tend to negate the suggestion ofmaterially enhanced risk of harm, insofar as they suggest that the conduct was essentially unrelated to the employment and any enhancedrisk it may have created (for example, if the employee’s tort occurred offsite and after hours).

The policy considerations of faircompensation and deterrence upon which vicarious liability is premised may be attenuated or completely eliminated in suchcircumstances. [34] In other words, while time and space can affect the strength of a connection between a tortfeasor’s employment and assigned tasks,they are not determinative. Tortious conduct occurring on site and on employment time does not necessarily establish vicarious liability,and tortious conduct occurring offsite and on personal time does not necessarily negate a claim of vicarious liability. [36] Other Supreme Court of Canada decisions pertain.

Jacobi v. Griffiths, (SCC), [1999] 2 S.C.R. 570, 63B.C.L.R. (3d) 1 (S.C.C.) concerned a claim that a Boys’ and Girls’ Club was vicariously liable for sexual assaults its employeeperpetrated on members of the club. In a split decision, the Supreme Court of Canada declined to impose vicarious liability because theemployee’s tortious conduct was not sufficiently connected to his assigned tasks.

The employee in Jacobi had only minimal opportunityfor intimate contact with the children, and only one minor touching had occurred on club time in the club van, whereas the other assaults,which were serious and several, had taken place at the employee’s home and on his personal time. The Court explained that time andplace in that case negated deterrence as a policy rationale for the doctrine because the club was not in a position to manage or control theemployee’s behavior outside of work times and locations.

That situation, the Court stated, buttressed the argument that the employeewas engaging in personal tortious behavior unconnected to his assigned tasks or the employer’s objectives. [37] E.B. v. Order of the Oblates of Mary Immaculate (British Columbia), 2005 SCC 60, [2005] 3 S.C.R. 45, also concerned theconnection between a tortfeasor’s assigned tasks and his wrongful conduct. In that case, the tortfeasor, who had sexually assaulted a

student resident, was employed as a baker in a residential school run by the Oblates .

The Court identified the critical inquiry as the sufficiency of connection between the powers, duties, and responsibilities conferred on the baker by the Oblates in relation to his sexual assaults of the resident, keeping in mind whether the particular environment in which the baker’s duties were discharged could be said to have contributed to his opportunity to engage in his predatory activities (paras. 2 and 28). [ 38 ] In ruling that the connection between the baker’s assigned tasks and his sexual assaults of the resident was not sufficiently strong to warrant imposing vicariously liability, the Court took particular note of the fact that the baker was employed in the kitchen of the school, and that the Oblates had not conferred on him any special power or particular duties in relation to the students which would materially increase the risk of sexual assault to a resident. [ 39 ] In Rich v.

Bromley Estate , 2013 NLCA 24 , leave to appeal to the Supreme Court of Canada refused, 355 Nfld. & P.E.I.R. 8 (S.C.C.) , this Court held that the Government of Newfoundland and Labrador was vicariously liable for the sexual abuse a volunteer priest had perpetrated on a boy who resided at the government’s detention home. The priest had been authorized by the home to take the boy on overnight excursions as part of the home’s “reward for good behaviour” program.

The case involved issues respecting both the relationship between the government and the priest and the connection between the priest’s tasks and his abuse of the boy.

The relationship issue was determined to justify the imposition of vicarious liability on the basis that the priest had been delegated by the home to carry out its custodial policies (its objectives), and the connection between the priest’s tasks and his abuse of the boy was found to be sufficiently strong to justify imposing vicarious liability because the priest was tasked by the home with the sole authority and power to care for the very vulnerable boy on excursions involving intimacy. [ 40 ] In

summary, the common threads that underpin the imposition of vicarious liability in cases involving the abuse of children are when the tortfeasor is tasked with a high level of responsibility to care for the child, when the wrong occurs in a setting over which the enterprise has some authority, when the authorized care involves intimacy, and when the child is vulnerable. ANALYSIS [ 41 ] In this case, there is no question that C.M., employed by Canada as an officer in John Doe’s cadet squadron, enjoyed a sufficiently close relationship with Canada to justify the imposition of vicarious liability.

Therefore, John Doe’s challenge at trial was to establish that C.M.’s sexual abuse of him was sufficiently connected to the tasks Canada assigned to C.M., such that the harm John Doe suffered could be fairly regarded as a materialization of the risk Canada created by introducing the cadet program into the community. The Intermingling Argument [ 42 ] As indicated above, John Doe alleges that the Judge’s intermingling of negligence considerations into her vicarious liability analysis caused her to reach the wrong result on vicarious liability.

He rests his argument on the fact that the Judge focused on Canada ’s screening, training, and supervising of C.M. in the course of her analysis on vicarious liability, saying that Canada’s screening, training, and supervising of C.M. relate to whether Canada was negligent in its employ of C.M. and not to whether Canada is vicariously liable for C.M.’s wrongs. John Doe says that the two bases for liability are different, in that negligence is fault-based whereas vicarious liability is relationship-based and task-related, and that the two doctrines exist independently of each other.

He argues that the Judge intermingled factual findings negating Canada’s negligence (which he has not appealed) into her vicarious liability analysis, and used her negative negligence findings to support her conclusion that Canada was also not vicariously liable. John Doe says that if the Judge had not mixed up the two doctrines in applying them to the evidence, a different result on vicarious liability could have obtained. [ 43 ] John Doe’s argument is not without some merit.

It is so that Canada’s screening, training and supervising of C.M. generally relate to whether Canada was negligent and not to whether Canada was vicariously liable. It is also so that the Judge considered these negligence factors as part of her vicarious liability reasoning.

While screening, training and supervising an employee could be said to relate to how the policy of deterrence informs the doctrine of vicarious liability, review of the Judge’s remarks concerning Canada’s screening, training, and supervising of C.M. within her reasoning on vicarious liability shows that her focus was on fault and not on how the policy of deterrence underpins vicarious liability (paras. 139-142).

However, as will be discussed below, focus on fault did not overwhelm her analysis. [ 44 ] The justification for imposing vicarious liability on Canada must rest on the connection between C.M.’s assigned tasks and his tortious behavior, not on whether Canada failed to properly screen, train, or supervise C.M.

Accordingly, what must be determined is whether the Judge reached her conclusion on vicarious liability by considering the objectives of the cadet program and C.M.’s role within it, and whether C.M.’s specific duties gave rise to a material risk of him sexually assaulting John Doe in the context of the power or dependency relationship between them. [ 45 ] In this regard, Lt. Cdr. Marilyn Kieley’s evidence is germane. She testified for Canada .

As the officer in charge of cadet training in Newfoundland and Labrador, she was qualified to explain the aims and objectives of the cadet program and the risks related to the responsibilities of the officers within it. [ 46 ] Lt. Cdr. Kieley testified that the aims of the cadet program are to develop in youth the attributes of good character and leadership, to promote physical fitness, and to stimulate the interest of youth in the sea, land, and air activities of the Canadian Forces. She explained that at 510 Lions in St.

John’s, C.M. held the rank of lieutenant and that his tasks as a training officer were to develop training programs for cadets, such as the projectionist course, and co-ordinate their implementation. At the Greenwood camp, armed with a slightly higher rank, his task was to teach the projectionist course to cadets. [ 47 ] Lt. Cdr. Kieley testified to Canada’s awareness of the nature of the relationship between officers and cadets, and the risks associated with the power imbalance between them.

She freely admitted that cadets were vulnerable within the cadet program and at the summer camps, and that the program was based on a military model, meaning that all those of lower rank, including cadets, were vulnerable to their respective superiors. She acknowledged that this structure created a culture of obedience and lack of complaint and that cadets are in a dependent relationship with officers, that cadets are encouraged to respect and obey their officers, and that at camp, cadets depend on their officers to fulfill their physical and emotional needs. Lt. Cdr.

Kieley also acknowledged that the officers were

meant to be role models for the cadets and to set good examples for cadet behavior. [ 48 ] The Judge considered the evidence of Lt. Cdr. Kieley, and others, as well as that of John Doe and C.M., and concluded that the sexual abuse visited on John Doe by C.M. was not related to any enhanced opportunity or power relationship given to C.M. by Canada (para. 148). She found that C.M.’s role as a training officer in St.

John’s was limited to developing instructional programs for delivery by senior cadets to junior cadets, and that C.M.’s role at the Greenwood camp was that of instructor for the projectionist course, and that neither of these roles required C.M. to engage in the intimate aspects of cadets’ lives (para. 147).

With regard to C.M.’s visits to John Doe’s room in the barracks in the summer of 1970, she found that C.M. was not in charge of the barracks or the hangar at Greenwood, and that his ability to visit there was not associated with his role as instructor. [ 49 ] I agree with the Judge’s assessment of C.M.’s role within the cadet program.

Canada conferred on C.M. a certain opportunity to meet and get to know John Doe when he registered as a cadet in the fall of 1969, and the opportunity for C.M. to know John Doe continued in C.M.’s capacity as a training officer at 510 Lions and as an instructor of the projectionist course at Greenwood. However, neither of these roles provided any authorized opportunity for intimacy, or isolation of individual cadets from other cadets, which could enable C.M. to take sexual advantage of John Doe.

In short, the tasks Canada assigned to C.M. did not materially increase the risk of his sexual predation of John Doe, or provide C.M. with an enhanced opportunity for wrongdoing. [ 50 ] C.M.’s power and authority over John Doe also warrants examination.

As a training officer and John Doe’s supervisor, C.M. had a degree of power and authority over John Doe. [ 51 ] On appeal, John Doe’s counsel argued that C.M.’s second visit to John Doe’s barracks room was evidence of the power and authority C.M. had over John Doe, and therefore demonstrated a close connection between C.M.’s assigned tasks and his wrongful conduct.

Counsel emphasized C.M.’s ability to enter the barracks unchecked and the power he exhibited over John Doe while in his room. [ 52 ] The second barracks incident described above took place just days after the first sexual assault which occurred in the same barracks room, and in the context of John Doe refusing to attend the projectionist course and wanting to go home due to being upset over the assault. Evidence respecting security at the entrance to the barracks was scanty, and what there was, was unclear.

However, I would not consider it surprising that C.M. was able to enter the barracks easily, security or not, given his role at the camp. [ 53 ] As John Doe’s instructor, it was part of C.M.’s assigned tasks to encourage him to complete his course. While that is so, C.M.’s entering of John Doe’s barracks room at night and making him get out of bed and stand in his underwear while C.M. lectured him about completing his course assignment and that leaving Greenwood would be expensive and disappointing to John Doe’s father, had abusive and sexual overtones.

Given the previous assault, the time, place, and manner of C.M.’s second visit to John Doe in the barracks would have been beyond the scope of what Canada authorized C.M. to do as the course instructor. [ 54 ] C.M. was a junior officer – a training officer of low rank. He was a university student who worked for Canada part-time during the year and during summers, and was only a few years older than the cadets he was developing programs for or instructing.

While C.M. had a degree of power and authority over John Doe, it was not significant, and his power and authority were limited specifically to developing and teaching instructional programs for cadets. His duties in these regards were confined to time, place and circumstances which did not involve intimacy, isolating cadets from each other, or the exercise of general power and authority over cadets in St. John’s or at the Greenwood base.

Canada’s grant of limited power and authority to C.M. did not give him an enhanced opportunity to abuse John Doe. [ 55 ] It is also important to recognize that C.M.’s abuse of John Doe did not follow exclusively from their involvement with Canada’s cadet program. During the first year John Doe spent in cadets, C.M. developed a close relationship with John Doe’s family.

Accordingly, it could be said that in abusing John Doe, C.M. was also taking advantage of his position of respect and trust within John Doe’s family. [ 56 ] The Judge was not persuaded by John Doe’s allegation that he was “particularly vulnerable”, finding that particular vulnerability was not established by the evidence.

Her assessment was that John Doe was an active teenager in a loving home, that he drove a motorcycle, that he enjoyed considerable social freedom, that he had part-time jobs, friends, and enjoyed spending time with his grandparents, and as such, was not a particularly vulnerable cadet. [ 57 ] John Doe’s vulnerability must involve assessment of his vulnerability when he was first sexually abused at Greenwood, which was well before he owned a motorcycle or had a license to drive one. Greenwood was an air force base owned and operated by Canada in Nova Scotia.

Like all military bases, it was partitioned from the outside world. It was also far away from John Doe’s home in St. John’s, Newfoundland. While John Doe was arguably free to leave the Greenwood camp, the physical and psychological barriers of doing so were significant. [ 58 ] It is important to note that, as a general rule, all children are vulnerable to adults and, as Lt. Cdr. Kieley acknowledged, all cadets are vulnerable to officers.

While this is so, not all officers present the same kind or degree of risk of harm, and not all children, cadets or otherwise, are equally vulnerable for the purposes of considering whether vicarious liability ought to be imposed. [ 59 ] John Doe, like every cadet, was vulnerable as a minor child within the military structure of the cadet program. He was in a more vulnerable position while at Greenwood than in St. John’s.

However, his vulnerability to the sexual predation of C.M. was unlike that of plaintiff in Bazley and the boys in John Doe (G.E.B. #25) in that he was not isolated in a children’s home or completely dependent on his abuser. Nor was he behaviorally or emotionally challenged like the plaintiff in Bromley Estate . [ 60 ] The above is not to say that vulnerability establishes or does not establish vicarious liability. Rather, it is to say that vulnerability covers a wide spectrum, and it may or may not be a weighty factor in a vicarious liability analysis.

What the law looks for in reaching a conclusion on vicarious liability is a balancing of the vulnerability in play in a case with the other factors which inform the connection between a wrongdoer’s assigned tasks and his wrongdoing. In this case, there is no doubt that John Doe was in a vulnerable situation. However, as noted above, this factor is not determinative.

[ 61 ] The times and places of the abuse of John Doe at the Greenwood camp – the sexual assault in the bed in the Barracks and the lecturing incident in the Barracks’ bedroom – were found by the judge to be beyond the scope of C.M.’s role. Although these incidents took place in Canada ’s space, they took place after hours and not in a location associated with C.M.’s role as instructor for the projectionist course.

As such, they were only peripherally related to the tasks assigned to C.M. by Canada and cannot be said to have resulted from a significant risk of harm resulting from C.M.’s assigned tasks associated with the work C.M. was carrying out on Canada’s behalf. [ 62 ] As well, time and place figure prominently in considering whether the ongoing sexual activity between C.M. and John Doe in St. John’s and later had a sufficient connection with cadets. That sexual activity took place at C.M.’s mother’s home and later at C.M.’s residence outside St. John’s.

Any social activities John Doe and C.M. engaged in together in St. John’s or the other community were not associated in any way with cadets or the Canadian military, as the Judge observed. Neither was the cadet program associated with C.M.’s sexual abuse of John Doe on the road trip to New York. The ongoing sexual activity between John Doe and C.M., while grounded in the abuse at Greenwood, was not the materialization of significant risk of harm as a consequence of the duties Canada vested in C.M.

Imposing vicarious liability on this basis would not accord with the policy of deterrence, in that Canada had no control or supervisory authority over C.M.’s personal and recreational activities outside of his work for Canada . Canada was in no position to deter risk associated with those activities. [ 63 ] In

summary, despite the Judge’s consideration of negligence factors in her vicarious liability analysis, she considered the factors identified in the jurisprudence to assist in determining the strength of the connection between C.M.’s duties and his wrongdoing, and ultimately concluded that the connection between C.M.’s assigned tasks and his wrongful conduct in relation to John Doe was not strong and not sufficient to justify imposing vicarious liability on Canada .

On review of all of the facts and circumstances as stated above, and on balancing the factors in play in this case, I am unable to say that the Judge erred in reaching the conclusion she did. Her decision as a whole was based on consideration of the factors properly informing a determination of vicarious liability, and is in keeping with the law respecting vicarious liability as set out in Bazley , Jacobi, and Oblates .

She concluded that the tasks Canada assigned to C.M. did not materially increase the risk of harm to John Doe ( Bazley , at para. 40 ), and the connection between C.M.’s duties and his wrongs is not of sufficient strength to justify imposing vicarious liability on Canada , and in my view made no palpable and overriding error in doing so.

The Insufficiency of One Sexual Assault [ 64 ] John Doe’s second argument concerns the Judge’s determination that the one incident of sexual abuse at Greenwood in 1970 was insufficient to trigger the imposition of vicarious liability (para. 152). [ 65 ] C.M.’s sexual assault of John Doe in the barracks at Greenwood camp in 1970 was a serious sexual assault of a child. This one incident on its own is sufficient to trigger a claim of vicarious liability. The imposition of vicarious liability does not depend on the number of times an intentional tort is committed.

Rather, it depends on whether the relationship between the tortfeasor and the enterprise and the connection between the tortfeasor’s assigned tasks and the intentional tort are sufficiently strong to justify imposing vicarious liability. [ 66 ] The Judge’s statement is unfortunate, in that it leaves the impression that the number of times a tort occurs is material to whether vicarious liability ensues. The number of times a tort occurs is not determinative of vicarious liability.

While frequency can be material to other issues, damages in particular, in principle it is not material to the strength of the connection between the tort that triggers vicarious liability and the tasks a wrongdoer is assigned by an enterprise. [ 67 ] Given the Judge’s statement, the issue becomes whether the impugned statement was the basis for her ultimate determination that Canada was not vicariously liable. In my view it was not.

As indicated above, review of the Judge’s decision shows that she conducted her analysis of vicarious liability in consideration of the factors set out in the jurisprudence respecting the sufficiency of a connection between C.M.’s assigned tasks and his wrongdoing, and reached her conclusion on that basis. When the Judge’s reasons as a whole are read, it is clear that she applied the correct law of vicarious liability to the facts and reached her conclusion on that basis.

While her statement that the Greenwood sexual assault incident was insufficient to trigger vicarious liability could, on its own, be said to be a palpable error, it was not overriding because it did not determine the result she reached. [ 68 ] Something must be said about the Judge’s references to John Doe’s parents actively encouraging their son’s relationship with C.M. despite the six-year age difference, and giving their permission for John Doe to stay overnight at C.M.’s home and to go on the road trip with him.

Child abusers are well known to ingratiate themselves to parents and others so as to divert suspicion away from their nefarious activities. Caring parents who believe they are acting in their children’s best interests by condoning relationships with persons they thought they could trust are not to be blamed when those persons breach their trust by abusing their children.

SUMMARY AND DISPOSITION [ 69 ] In

summary, the Judge did not err in concluding that Canada was not vicariously liable for C.M.’s sexual abuse of John Doe. Her mixing of negligence considerations into her analysis of vicarious liability and her “one incident” statement did not overwhelm her analysis respecting the connection between C.M.’s assigned tasks and his wrongful conduct. Her decision that the connection was insufficient to warrant the imposition of vicarious liability on Canada has not been shown to be in error.

Accordingly, I would dismiss John Doe’s appeal. [ 70 ] Given the above result, it is not necessary to consider the Judge’s failure to consider John Doe’s claim respecting his economic loss or her alleged error in relying on the evidence of Canada’s causation expert. It is also not necessary to address the Judge’s dismissal of Canada’s third party action against C.M. COSTS [ 71 ] I would award Canada its costs for one counsel on Column 3 of the Scale of Costs. I would exercise my discretion to deny C.M. recovery of his appeal costs from Canada respecting Canada’s third party action against him.

It was reasonable for Canada to third party C.M. C.M.’s success as a third party was not due to his successful defence of the third party action. Rather, it was due to Canada’s

successful defence of John Doe’s vicarious liability claim. [ 72 ] I would not disturb the Judge’s costs orders in the Court below. Appeal dismissed.