Rich v. Bromley Estate, 2013 NLCA 24

Date: 20130409 Docket: 11/29 Citation: Rich v. Bromley Estate , 2013 NLCA 24 err 1 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: LOUIS RICH APPELLANT AND: THE ESTATE OF RONALD BROMLEY, as represented by the Registrar of the Supreme Court of Newfoundland & Labrador FIRST RESPONDENT AND: HER MAJESTY THE QUEEN in Right of Newfoundland, who at all material times to this action was represented by the Minister of Social Services.

SECOND RESPONDENT AND: THE ROMAN CATHOLIC EPISCOPAL CORPORATION of Grand Falls (The Roman Catholic Diocese of Grand Falls) THIRD RESPONDENT Coram: Green C.J.N.L., Rowe and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador,

Trial Division (G) 200201T4456 Appeal Heard June 20, 2012 Judgment Rendered April 9, 2013 Reasons for Judgment by Green C.J.N.L. and Harrington J.A. Dissenting Reasons by Rowe J.A. Counsel for Appellant: John W. Lavers Counsel for the Second Respondent: Randolph J. Piercey Q.C. CORRIGENDUM [ 1 ] In the first sentence of paragraph 149, the name “Bromley” is deleted and replaced with the name “Rich”. [ 2 ] In paragraph 149 (iii), the name “Rich” is deleted and replaced with the name “Bromley”. _____________________________ J. D. Green C.J.N.L. ______________________________ M. F.

Harrington J.A. _____________________________ M. H. Rowe J.A. Date: 20130409 Docket: 11/29 Citation: Rich v. Bromley Estate, 2013 NLCA 24 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL

BETWEEN: LOUIS RICH APPELLANT AND: THE ESTATE OF RONALD BROMLEY, as represented by the Registrar of the Supreme Court of Newfoundland & Labrador FIRST RESPONDENT AND: HER MAJESTY THE QUEEN in Right of Newfoundland, who at all material times to this action was represented by the Minister of Social Services SECOND RESPONDENT AND: THE ROMAN CATHOLIC EPISCOPAL CORPORATION of Grand Falls (The Roman Catholic Diocese of Grand Falls) THIRD RESPONDENT Coram: Green C.J.N.L., Rowe and Harrington JJ.A.

Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (G) 200201T4456 Appeal Heard June 20, 2012 Judgment Rendered April 9, 2013 Reasons for Judgment by Green C.J.N.L. and Harrington J.A. Dissenting Reasons by Rowe J.A.

Counsel for the Appellant: John W. Lavers Counsel for the Second Respondent: Randolph J. Piercey Q.C. Reasons for Judgment by Green C.J.N.L. and Harrington J.A.: [ 3 ] This appeal arises from the dismissal of the appellant’s claim for damages against Her Majesty the Queen in Right of Newfoundland (Province) for physical and sexual abuse by Father Ronald Bromley (Bromley) deceased, while the appellant was residing as a permanent ward of the Director of Child Welfare of the Province (Director) at the Whitbourne School for Boys (School).

BACKGROUND [ 4 ] The appellant, Louis Rich (Rich) is a member of the Innu First Nations born in Sheshatshiu, Labrador on March 17, 1964. His mother passed away when he was five years old. In the ensuing five years he was nominally cared for by his sisters while his father was working away from the family home. [ 5 ] Rich has had a longstanding alcohol abuse problem which began when he was nine years of age.

This history is coupled with a lengthy criminal record for offences that included assault, sexual assault, resisting arrest and breaking and entering. [ 6 ] His behaviour and troubled life generally led him to be transferred from custodial facilities in Labrador to the island part of the Province, where on August 17, 1976 he became a permanent ward of the Director. He was admitted to the St. John’s School for Boys first but was later transferred to the Whitbourne School for Boys on or about August 27, 1976.

He remained there intermittently until 1981. [ 7 ] During the 1970s, Bromley, a Roman Catholic priest for the parish of Whitbourne, volunteered to organize activities for the residents at the School. On or about August, 1974, following prior consultation with and approval from the Superintendent of the School, Bromley began to take wards including Rich from the School to his cabin in the nearby Placentia Junction area for overnight stays as an incentive for good behaviour.

The Director of the Province’s Department of Recreation and Rehabilitation was consulted by the Superintendent of the School regarding this plan and granted approval. There was evidence from a retired social worker supervisor that the Province had discontinued visits by social workers to the School on March 30, 1977.

Rich testified that he was sexually and physically assaulted by Bromley at the cabin on two occasions during one such overnight stay on a weekend in July of 1977, with other boys from the School. [ 8 ] The first assault allegedly happened while Bromley and the boys were swimming in a pond near the cabin. Rich testified that Bromley organized a diving game and instructed the boys to dive between his legs. Rich testified that Bromley “knelt” while he was diving between the priest’s legs preventing Rich from swimming through his legs. He testified that he could see that Bromley had removed his underwear.

He claimed that Bromley tried to hold his head underwater and put his penis in his mouth. Rich freed himself and swam away. [ 9 ] The second assault allegedly happened shortly after the swimming activity ceased. Rich went back to the cabin to get dressed. He thought he had locked a door behind him. While putting his pants on, Rich testified that Bromley walked in and started watching him. The trial judge wrote: [17] Rich said Bromley told him to turn around and when he did he said Bromley was naked and was masturbating himself. He said Bromley told him it was all right as he was a man of God.

Rich said Bromley told him to come towards him. He said Bromley made another attempt to put his penis in Rich’s mouth. Rich said Bromley was holding him by the hair of his head. He said Bromley then ejaculated on his face. He said at one point Bromley forced him to put his hand on Bromley’s penis and masturbate him. [18] Rich then said he thought Bromley smacked him across the face, knocking him unconscious. Rich said that when he woke up he was in bed, his face had been washed and the other boys were in the cabin.

He was uncertain if they all stayed the night in the cabin but he thought they did as he recalled lying on the floor with one of the boys. Rich said they all went back to Whitbourne the next day before noon. He never went out with Bromley again, although Bromley tried to get him to do so. … [ 10 ] Rich testified that he reported the incident to the Superintendent of the School, who responded by slapping him on the face and placing him in solitary confinement. [ 11 ] Rich called similar fact evidence from William Dunne (Dunne), who had been at the School with him.

Dunne and Rich knew each other but were not close friends. [ 12 ] Dunne testified that Bromley assaulted him on three outings. He alleged that Bromley always took the boys swimming and encouraged them to dive between his legs. When the boys did this, Bromley would squat down and try to touch them sexually. Dunne also testified that Bromley assaulted him in his cabin twice, undoing his pajamas, stroking his penis, rubbing up against him, and on one occasion putting his mouth on Dunne’s penis. Rich was not present on any of these outings. [ 13 ] The trial judge held that Rich’s story was not credible.

He found that Rich did not remember the assaults until he saw Bromley’s arrest on television. He noted that Rich’s earlier writings while in custody and statements to the police only mentioned abuse by another priest, Father Paradis. In November 1991, Rich had allegedly denied that Father Bromley had assaulted him. The trial judge concluded: [112] There was no evidence or rumours of wrongdoing by Bromley prior to the alleged assaultive behaviour.

The two alleged assaults on the plaintiff occurred on one day at Bromley’s cabin and consisted of an attempt by Bromley to put his penis in Rich’s mouth while the two of them, together with a couple of other boys, were swimming and attempting to put his penis in Rich’s mouth a short time later

in the cabin and eventually ejaculating on Rich’s face and slapping him unconscious. Rich has a lengthy criminal record for break, entryand theft, assault and sexual assault. He is violent. He is an alcoholic and has abused drugs. He has had trouble maintainingrelationships throughout his life. He further described Rich as follows: [113] Rich had a troubled childhood, losing both of his parents to alcohol. His mother died when he was seven and his whole worldchanged. He was ostensibly raised by his older sisters as his father was either away at work or drunk but in reality he had little or nosupervision.

He started abusing alcohol at age nine and got into significant criminal trouble through breaking and entering cabins, andstealing alcohol and other property, including skidoos. Prior to being incarcerated in Whitbourne for some of these offences, he (whileleading others) broke into a building and killed 100 chickens. He continued his life of crime and substance abuse into adulthood andsexually assaulted his own daughter. [114] The Court found that Louis Rich was not a credible witness. Bromley had died prior to the trial. Rich did not pursue criminalcharges against him prior to Bromley’s death.

The Court found that Rich had not proved on a balance of probabilities that the assaults byBromley had occurred. [14] The trial judge emphasized Rich’s lengthy criminal record and his monetary incentive to allege abuse by Bromley. While thetrial judge admitted the similar fact evidence with the consent of counsel for the Province, he placed little weight on it.

He concludedthere were “substantial differences” between Rich’s account and that of Dunne and found that it was unlikely in any case “that any 12-year-old boy, no matter how small, could swim under the legs of a man of average height while kneeling down in the water” (paragraph45). [15] The trial judge concluded that even if he believed Rich’s allegations, he would not have found that the Province was liable fornegligence: [56] It is easy to look back with the benefit of hindsight and the recent history of sexual abuse by Roman Catholic clergy and concludethat the government ought to have known of the risk to which they were subjecting Mr.

Rich. But in the absence of evidence in respect ofthe knowledge of those in power at the time, there is no basis in the circumstances of this case to conclude that there was a foreseeablerisk of harm in allowing Mr. Rich an overnight pass to visit Father Bromley’s cabin in the company of other boys.

There weren’t evenany suggestions of rumours which might have put the Director and Superintendent on notice that they ought to be careful in respect ofBromley. [16] The trial judge found that Bromley’s relationship with the School was that of a volunteer and a “completely independentcontractor” in relation to the Province (paragraph 65). Accordingly, he found that the Province was not liable on the basis of “vicariousor strict liability” for Bromley’s actions. He nevertheless found that if the Province was vicariously liable, he would have awarded Rich$45,000 in damages, including $15,000 for aggravated damages.

ISSUES 1. Did the trial judge err in holding that Rich was not a credible witness, while placing weight on irrelevant and/or incorrect factors inassessing the credibility of Rich when recounting events which occurred during childhood? 2. Did the trial judge err in attributing little weight to the similar fact evidence admitted at trial? 3. Did errors of the trial judge, in his assessment of the credibility of Rich and his treatment of the evidence of Dunne, constitutepalpable and overriding error justifying either a new trial or imposition of liability by this Court? 4.

Did the trial judge err in holding that the Province was not vicariously liable for the actions of Bromley by failing to find that theProvince was in breach of a non-delegable duty of care towards Rich? 5. Did the trial judge err in assessing the quantum of damages that was appropriate in the circumstances of the case? STANDARD OF REVIEW [17] Cameron J.A. of this Court summarized the standard of applicable review in Cleary v. Courtney, 2010 NLCA 46, 299 Nfld. &P.E.I.R. 85 as follows: [15] The standards of review applied by this Court were discussed in Ring v.

Canada et al., 2010 NLCA 20, at para. 6: The standard of review applied by an appellate court depends upon the nature of the matter being reviewed. A pure question of law isreviewed on a standard of correctness and an appellate court is free to replace the opinion of the trial judge with its own. Findings of fact,on the other hand, cannot be reversed unless the trial judge has made a palpable and overriding error. A determination of whether a legalstandard was met involves the application of a legal standard to a set of facts which is a question of mixed fact and law.

A question ofmixed fact and law is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricableerror in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error inlaw and the applicable standard is correctness. These principles are well established: Housen v. Nikolaisen, 2002 SCC 33 ,[2002] 2 S.C.R. 235. Findings of credibility are part of the fact finding process and are subject to the same standard of review, as are inferences drawn fromthe facts.

If inferences drawn by the trial judge are reasonable, an appellate court should not intervene just because other inferencescould also have been reasonably drawn: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 74. … [18] In this proceeding, the issues regarding the formulation of the principles respecting vicarious liability and breach of a non-

delegable duty are questions of law and must be reviewed on a correctness standard. However, the issues about Rich’s credibility and the weighing of the similar fact evidence are questions of fact and are to be reviewed on a standard of palpable and overriding error. The issues relating to the negligence of the Director and the Superintendent, and the quantum of damages are questions of mixed fact and law. Those grounds of appeal can only succeed if the trial judge made an error on an extricable question of law or a palpable and overriding error. [ 19 ] A palpable and overriding error has been described as one which is “plainly seen” in Housen at paragraph 4 . It may arise when (

i) there is no evidence to support a trial judge’s decision; (ii) irrelevant factors were considered and relevant factors were not, or (iii) where there is an award of damages that is inordinately high or low (see Bussey v. White , 2001 NFCA 7 at para. 7 ). [ 20 ] In employing this list, two things must be kept in mind. First, the phrase “palpable and overriding error” encapsulates the highest level of appellate deference. It is not enough for the appellant to show that the trial judge considered one irrelevant factor, or that he or she failed to consider one relevant one.

An appellate court will only intervene if the error is significant enough to displace the strong arguments in favour of deference. [ 21 ] Second, the categories of palpable and overriding errors are never closed. As Iacobucci and Major JJ. wrote at paragraph 25 of Housen , “there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge – that of palpable and overriding error”. Any error that is plain enough and significant enough will trigger appellate intervention, regardless of whether the error fits into any list of categories.

ANALYSIS I Did the Trial Judge Err in Assessing Rich’s Credibility? [ 22 ] The trial judge in the final analysis did not find the evidence of Rich to be credible. He reached this decision from two vantage points. First, the trial judge doubted and drew a negative inference regarding Rich’s credibility due to his refusal to “confront Bromley while he was alive” (paragraph 41). Second, the trial judge concluded that Rich “apparently didn’t even remember the alleged assaults by Bromley until he saw Bromley’s arrest on television” (paragraph 35).

He found that the similar fact evidence, which was adduced by counsel for Rich with the consent of counsel for the Province, was not reliable, based principally on inconsistencies between the testimony of the witness Dunne and that of Rich. This evidence was adduced at trial without challenge to its admissibility by counsel for the Province.

The contest at trial was over reliability, with the final result being that the trial judge rejected his evidence, giving it “low” weight in reaching the conclusion that Rich had not proven that he had been assaulted by Bromley as alleged. [ 23 ] Before this Court, counsel for Rich takes the position that the trial judge erred in his assessment of credibility with respect to the finding that Rich did not confront Mr. Bromley on a timely basis.

He found in fact that Rich had forgotten about the abuse until his memory was suspiciously revived by seeing Bromley on television in the wake of revelations that he was charged with sexual abuse. [ 24 ] The trial judge stated that “Lewis Rich’s credibility is a critical element against which to test the veracity of his allegations”. He ultimately concluded that “the entire record reflects negatively on Rich’s credibility”.

Underlying his reasons was the view that there “is a clear monetary incentive to now exaggerate any alleged assault by Bromley”, noting that Rich had previously settled a lawsuit with the Roman Catholic Episcopal Corporation of Grand Falls (Corporation), the Third Respondent, with respect to the actions of another Roman Catholic priest. [ 25 ] In reaching his conclusion that Rich was not a credible witness, the trial judge made two palpable and overriding errors: 1. He drew an adverse inference against Rich because he waited until Bromley had died to confront him.

That inference was not supported by any evidence. 2. He rejected Rich’s position that he had forgotten the abuse that he was alleging. That rejection was based on a misapprehension of Rich’s evidence. [ 26 ] Together, these errors demonstrate that, whether Rich is ultimately found to be credible or not, the trial judge’s basis for his assessment of Rich’s credibility is plainly incorrect. 1. Rich Did Not Refuse to Confront Mr.

Bromley [ 27 ] The trial judge drew the following adverse inference against Rich for failing to confront Bromley while he was alive: [41] … While I appreciate that it may be difficult for alleged victims to pursue such matters, it undermines Mr. Rich’s credibility when he refused to confront Bromley when he was alive and could defend himself but is now pursuing the province for financial gain based on allegations against Bromley when the province and Bromley cannot offer any direct denial of these allegations. [ 28 ] The trial judge’s finding that Rich refused to confront Bromley while he was alive has two parts.

The first is that Rich, having pressed criminal charges against Bromley, decided not to pursue them, leading to a stay of proceedings. The evidence on that point was mixed: some suggested that Rich decided not to pursue the charges, some that he accepted the Province’s decision to drop them.

In assessing the significance of this evidence, the trial judge does not appear to have considered the fact that Bromley had been acquitted on appeal of other charges would reasonably have shaken Rich’s resolve to continue with the criminal proceedings against Bromley. [ 29 ] The second part of the trial judge’s finding is that Rich did not pursue his civil claim until it was too late for Bromley to deny it. That is not supported by any evidence. The record shows that Rich filed a statement of claim against Bromley while he was alive. The

trial judge acknowledged that (Decision, paragraph 1). Bromley was killed in a motor vehicle accident subsequent to the commencement of the proceeding. [ 30 ] Counsel for Rich argues that the trial judge placed undue emphasis on the fact that the criminal charges laid against Bromley with respect to the alleged assaults were stayed. The stay occurred following a recommendation of the Crown to Rich in the wake of an appellate reversal of convictions of Bromley for similar alleged misconduct involving boys.

This was a sufficient justification for the stay, eliminating the inference that he “dropped” the charges because there was no substance to them. The trial judge accordingly ought not to have relied upon it to question Rich’s credibility. [ 31 ] Counsel also submits that Rich’s lengthy criminal record dating back to the age of 9 was unduly emphasized by the trial judge given his difficult upbringing in impoverished circumstances as a motherless (deceased) child and having a father who was away from home most of the time.

We agree with the appellant’s counsel that the trial judge overemphasized the record, particularly his specific reference to Rich’s participation with other boys in an unfortunate incident that led to the senseless destruction of approximately 100 hens. [ 32 ] The record does not suggest Rich was unduly slow in moving the civil case towards trial. The Province was dilatory with respect to production of documents and conduct of discovery.

During the longest period of inactivity from December 3, 2002 to July 15, 2005, the ball appears to have been in its court. [ 33 ] Finally, the record does not suggest that Rich had any reason to expect that his civil suit would ever go to trial without Bromley’s testimony. It does not suggest that Bromley’s death was predictable. Nor does it indicate that Rich would necessarily have wanted to avoid his testimony.

On the stand, Bromley might have confessed, or offered evasive and unbelievable testimony that would implicitly bolster Rich’s case. [ 34 ] If Bromley’s testimony was an essential element of the Respondents’ case, they could have recorded his evidence. They did not, and cannot get the benefit of the most favourable assumptions about what Bromley’s evidence might have been. [ 35 ] The trial judge’s adverse inference is not supported by any evidence and is a palpable and overriding error. 2. Rich Did Not Forget About the Assaults [ 36 ] Rich had on some occasions denied being abused by Bromley over the years.

These denials became a central point at trial, with the defence leading evidence of prior inconsistent statements, and Rich introducing an expert witness to explain them. [ 37 ] The trial judge rejected Rich’s explanation: [35] [My impression that Mr. Rich’s testimony was based in large part on a reconstruction of the events from his reading prior statements and other evidence] was supported by the fact that Rich apparently didn’t even remember the alleged assaults by Bromley until he saw Bromley’s arrest on television, respecting several assaults on others. Even though Mr.

Curt Hillier, a clinical psychologist who testified for the plaintiff on the effects of sexual assault stated that it is not uncommon for victims of multiple sexual assaults to confuse and confabulate the various incidents, there was no expert evidence that forgetting the incident entirely might be expected from a person who had endured the life experiences of Mr. Rich.

I was left to speculate which I decline to do. [ 38 ] The word “apparently” implies that the trial judge was stating his understanding of Rich’s explanation: Rich had denied the assaults because he did not remember them. [ 39 ] Rich did not say that he forgot the assaults; he said that he had buried them. When his counsel asked him why he denied the abuse in 1990, Rich’s testimony was as follows: Q: In 1990 did you deny a history of sexual abuse to the Brentwood Treatment Center? A: Yes. Q: And why did you do that?

A: Shame and guilt. [ 40 ] When defence counsel pressed him on that point, Rich denied pointedly that he had ever forgotten the abuse: Q: The incidents that you alleged happened with Father Bromley left your mind right. You forgot about them? A: Actually, I buried it. I buried, hoping it would never come back up on me. Q: Okay, and as I understand it, it was when you saw him on TV that he was arrested for other sexual assaults, that this came back to you? A: The shame and guilt came back to me so I denied it right away.

I denied—it’s something—I believe it was in Labrador Correction Centre when this happened, when I seen the priest on TV and I felt so guilty that I felt like everybody could see through me and—I don’t know, somebody mentioned something about Bromley, or about priests in general, and I said I’m glad that never happened to me. I denied it because of the guilt that was involved in it, shame that was involved in it. [ 41 ] The trial judge stated accurately, at another point in his reasons, that this was Rich’s explanation: “[I]n November 1991 [1] [Mr. Rich] denied that Bromley had assaulted him at all.

He testified he was too embarrassed at the time to disclose it and didn’t wish to speak about it” (paragraph 37).

[ 42 ] Despite this acknowledgement, the trial judge appears to have grounded an adverse inference regarding credibility on Rich having forgotten about the abuse. There was no evidence on which this inference could be based. II Did the Trial Judge Err in Discounting the Similar Fact Evidence? [ 43 ] The second issue deals with the trial judge’s treatment of the similar fact evidence of Dunne and whether he assigned proper weight to it.

Appellate courts rarely interfere in a trial judge’s weighing of evidence, but they can if an appropriate factor is materially overemphasized or underemphasized, thereby constituting palpable and overriding error. [ 44 ] The probative value of similar fact evidence has been discussed in detail by the Supreme Court of Canada in the context of admissibility issues, most notably in R. v. Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908.

The analytical framework emphasized in Handy is useful to help assess the trial judge’s reasoning with respect to the weighing of that type of evidence, especially where the issue revolves around the strength and degree of the similarity of the evidence. [ 45 ] Upon appellate review, the court ought to be able to assess whether a witness’s testimony is sufficiently similar to the plaintiff’s to show that the perpetrator had a distinctive modus operandi that could support the credibility of the plaintiff/victim, in this case, Rich.

Notwithstanding the fact that counsel for the Province did not contest the admissibility of Dunne’s evidence and the trial judge accepted it as admissible evidence (though reserving as to the weight to be ascribed to it), the trial judge nevertheless addressed the issue of admissibility in his decision. He stated that it has been submitted “to refute the defences of innocent association and lack of opportunity and to bolster Mr. Rich’s credibility” (paragraph 43). He accepted that these were “legitimate uses” for the evidence. [ 46 ] John Sopinka, Sidney N. Lederman, and Michelle J.

Fuerst observe at paragraph 11.242 of Sopinka, Lederman and Bryant: The Law of Evidence in Canada , (3d) (Markham, ON: LexisNexus, 2009): The inferences sought to be drawn from the evidence of similar facts must accord with common sense, intuitive notions of probability and … the … unlikelihood of coincidence. The strength of the evidence in true similar fact cases increases when it demonstrates situation-specific conduct in closely defined and circumscribed circumstances.

The degree of distinctiveness or uniqueness of the misconduct, the significant similarities or dissimilarity between the conduct in question and the conduct on other occasions, and the nexus or connectedness between the two are important factors to assess the strength of the similar fact evidence. (See pages 766-767, underlining added.) [ 47 ] While the trial judge acknowledged that the similar fact evidence proffered by Dunne could be used to bolster the credibility of Rich, he proceeded on the basis that it was otherwise “presumptively inadmissible” under the Handy framework and “should be used with caution” (paragraph 43).

The issue that emerges is whether or not the trial judge was unjustifiably skeptical as to the weight that should be accorded to Dunne’s testimony, particularly where there appears to have been striking similarities with respect to the description of the modus operandi of Bromley at his remote cabin in his interaction with regard to young boys such as Rich and Dunne. [ 48 ] The trial judge made a finding that “[w]hile the actual alleged assault in the water is somewhat similar, there are also substantial differences” (paragraph 44).

It is in this context that this Court is invited by counsel for Rich to assess whether or not the trial judge underemphasized the striking similarities between the Rich description of Bromley’s modus operandi in assaulting him during the diving game led by Bromley in the water and the description given by Dunne, to the point where they amount to palpable and overriding error. [ 49 ] The judge’s assessment of the weight to be assigned to admissible similar fact evidence is entitled to considerable deference and is subject to appellate review, as we have noted, on a standard of palpable and overriding error.

The Handy analytical framework, which is directed towards the admissibility criterion of threshold reliability, amongst other things, technically has no application to issues respecting the weight to be accorded such evidence once it has been admitted.

That said, the factors to be considered in the threshold reliability analysis are nevertheless useful in assisting in determining whether, on a standard of palpable and overriding error, the determination of ultimate reliability of the similar fact evidence evinces reversible error. [ 50 ] The trial judge gave three classes of reasons for discounting Dunne’s evidence: dissimilarities between his account and Rich’s, the internal consistency of Rich’s story, and Dunne’s credibility.

Analysis of the first class can be assisted by reference to the Handy framework respecting the factors to be considered connecting the formal circumstances of the similar fact evidence to the facts in issue. The second class of case is irrelevant; and the third class requires a separate analysis altogether. 1. Analyzing the Connecting Factors [ 51 ] The trial judge identified three issues to which the similar fact evidence was relevant: “to refute the [defence] of innocent association”, “to refute the [defence] of … lack of opportunity”, and “to bolster Mr. Rich’s credibility”.

The concession by the defence regarding the admissibility of the evidence of Dunne constitutes an implicit acknowledgement of the relevance of the similar fact evidence to a key issue in the trial.

Further, the nature of the particular similar fact evidence that was before the trial judge in this case is of the nature and character that is highly relevant to meeting on the balance of probabilities the resolution of the question of whether Rich was likely assaulted by Bromley. [ 52 ] Binnie J. provided a non-exhaustive list of possible factors connecting the similar facts to the circumstances at issue in Handy , at paragraph 82 . We will use these to frame the analysis. a. Proximity in Time of the Similar Acts

[53] The acts occurred within a few years of each other. Dunne testified that he was abused between 1977 and 1979; Rich testifiedthat he was abused in either 1976 or 1977. b. The Extent to Which the Other Acts Are Similar in Detail to the Charged Conduct [54] The acts described by Rich and Dunne are similar: 1. In each case, Bromley took a group of boys that included the victim swimming at a pond near the cabin; 2. In each case, Bromley encouraged the victim to swim between his legs; 3. In each case, Bromley removed the clothing he was wearing (trunks in one case, underwear in the other); 4.

In each case, Bromley attempted to touch the private parts of the victim during the diving game; and 5. In each case where the victim was in the cabin alone, Bromley assaulted him there also. [55] The trial judge noted some dissimilarities between Rich’s account and Dunne’s: 1. Bromley treated Rich more violently than Dunne; 2. Rich had no recollection of Bromley’s treatment of the other boys, whereas Dunne recalled Bromley touching the private parts ofall the boys; 3. Rich recalls Bromley kneeling during the diving game, where Dunne recalls him standing; and 4.

Rich describes a small, one-room cabin; Dunne describes a larger, multi-room cabin. [56] The trial judge did not mention two differences. First, Rich ran away after the diving game and was assaulted in the cabinduring the day. Dunne did not run and was assaulted in the cabin at night. Second, Bromley attempted to put his penis in Rich’s mouthduring the diving game, but not in Dunne’s. [57] Differences (2), (3), and (4) are in the nature of small and peripheral discrepancies that are to be expected when people testifyabout traumatic events that happened thirty years earlier when they were children.

As Wilson J. stated many years ago in R. v. B. (G.), (SCC), [1990] 2 S.C.R. 30 at p. 55: … [A] flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of anadult. … While children may not be able to recount precise details and communicate the when and where of an event with exactitude,this does not mean that they have misconceived what happened to them and who did it.

In recent years we have adopted a much morebenign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirabledevelopment. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard ofthe “reasonable adult” is not necessarily appropriate in assessing the credibility of young children. [58] McLachlin J. (as she then was) built on these comments in R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122 at p. 134: … Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed byreference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general,where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteriaapplicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence ofinconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of thewitness at the time of the events to which she is testifying. [59] As for difference (1), regarding the difference between the violent treatment of Rich as opposed to Dunne by Bromley, it wouldbe suspicious if the acts were exactly identical. This is similar fact evidence of propensity, not eyewitness testimony.

One sexualpredator, even if he has a distinctive propensity, will behave differently in different moods, on different days, in different circumstances. Different victims may react differently, leading to different situations. [60] As mentioned above, Rich was assaulted in the cabin during the day after he had run away from the diving game; Dunne wasassaulted at night. Perhaps Bromley was more violent because he was not surrounded by sleeping children; perhaps Rich, already upset,was more aggressive than Dunne.

Perhaps Bromley may have been sometimes violent and sometimes not, depending on his mood. [61] It was not an error for the trial judge to consider differences (1), (2), (3) and (4). They do lessen, to some degree, the probativevalue of the evidence. The question is whether he overemphasized them and in the process disregarded or seriously underemphasizedfactors pointing towards similarity to the extent of constituting a palpable and overriding error. c. The Number of Occurrences of the Similar Acts [62] Dunne described three occasions of abuse.

On all three occasions he says he was assaulted during the swimming game. On thefirst and third he was also assaulted while in bed in the cabin; on the second occasion he slept in a double bed and was spared. d. Circumstances Surrounding or Relating to the Similar Acts [63] Each incident occurred when Bromley took a group of boys from the Whitbourne Boys Home on a weekend outing.

e. Any Distinctive Feature(

s) Unifying the Incidents [64] The diving game is particularly distinctive. Two boys are unlikely to have independently fabricated the story that a priest tookoff his undergarments, encouraged them to dive between his legs, and touched or attempted to touch their private parts. Further, Richand Dunne each described Bromley repeatedly telling them while he was naked before them, either in the water or in the cabin, words tothe effect that “It’s ok ... I am a man of God”. f.

Intervening Events [65] Rich and Dunne did not confer about the abuse, or speak at all between 1979 and the day before Dunne’s testimony. [66] Counsel for the Province suggested no other factors that tended to support or rebut the underlying consistency of the similarevidence, nor are any apparent. [67] The similar fact evidence in this case paints a picture of Bromley as a sexual predator with a distinct modus operandi.

He woulduse his status as a priest to take a group of boys from the School — boys with the lowest possible social status, boys whose word wouldnever be taken over his — on overnight stays at his cabin. There he would organize and participate in a distinctive diving game withthem, taking off whatever he happened to be wearing and touching the boys, or at least some of them. Later, if he got the boys alone orunobserved in the cabin, he would attempt to sexually assault them, and in some cases, he succeeded. [68] The connecting factors are strong.

There are three distinct instances comprising five assaults, all of which happened within afew years of the abuse. The assaults share unique and distinctive features. Rich and Dunne had no opportunity to collude.

Thedifferences between the accounts are small, given the passage of time, the nature of traumatic childhood memories, and every assaultbeing a unique event in time. [69] If the dissimilarities were the only reason the trial judge assigned a “low” weight to the similar evidence, then the degree ofemphasis placed by the judge on those dissimilarities, in the absence of some credible explanation for disregarding the other indicia ofsimilarity, constitute palpable and overriding error. 2.

The Similar Fact Evidence Was Either Probative, Inadmissible, or Incredible [70] The same result can be reached by another approach. If the trial judge thought the probative value of the similar fact evidencewas “low”, and its prejudicial effect high or significant, he should not have admitted it notwithstanding the concession by counsel for theProvince. [71] Similar fact evidence is only admissible if its probative value exceeds its prejudicial effect. The prejudicial effect is usuallylarge, so similar fact evidence with a low probative value is usually inadmissible.

A trial judge who admits highly prejudicial evidence,even though its probative value is low, has essentially and improperly abdicated the role of gatekeeper. [72] The trial judge’s reasons appear to be contradictory: on the one hand, the probative value of the similar fact evidence exceedsits significant prejudicial effect (justifying its admission); on the other, the probative value is low (apparently justifying its rejection ashaving little or no evidentiary value). This contradiction has no satisfactory resolution. [73] The Province’s consent cannot justify the trial judge’s reasoning.

The trial judge has a duty to treat the evidence in an internallyconsistent manner regardless of what the parties concede or consent to. If he does not, he errs and an appeal court is entitled to intervene. The trial judge could not accept the Province’s concession that the evidence was more probative than prejudicial and still accept thecontradictory argument that the evidence was not probative. [74] If the trial judge disbelieved Dunne’s evidence, that could explain the contradiction. We are satisfied, however, that the trialjudge largely accepted Dunne’s evidence.

But for the trial judge’s erroneous treatment of the connecting factors, he ought to have putsignificant weight on the similar fact evidence. [75] The trial judge made only one comment about Dunne’s credibility: [47] … It is noteworthy that Dunne did not commence criminal legal proceedings against Bromley so his allegations remainessentially untested. In these circumstances, it would be inappropriate to ascribe great weight to the similar fact evidence. [Emphasis added.] [76] That comment is open to two

interpretations: 1. Dunne’s evidence must be slightly discounted because Bromley had no opportunity to contradict it. In that case, the phrase “[i]nthese circumstances” refers not only to Dunne’s decision not to press charges, but also to the previously-described differences betweenDunne’s account and Rich’s, on which the trial judge seems to have placed more weight; or 2. Dunne is untrustworthy and his evidence must be rejected because he refused to confront Bromley while he was alive. In that case,Dunne’s credibility alone can explain giving “low” weight to his evidence. [77] On the first

interpretation, the trial judge was applying Lord Mansfield’s dictum that “all evidence is to be weighed according tothe proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” (Blatch v Archer(1774), 1 Cowp. 63, 98 E.R. 969 at p. 970, quoted with approval in Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311 at p.328.) In evaluating Dunne’s evidence, the trial judge could properly consider that the evidence cannot effectively be challenged becauseBromley is dead. [78] This

interpretation could only explain a slight reduction in the weight of Dunne’s testimony, not a virtual rejection. Dunne gave

uncontradicted evidence which was not shaken in cross-examination. The standard of proof is a balance of probabilities. Most importantof all from the perspective of Lord Mansfield’s dictum, he withheld nothing—he produced all “the proof which it was in the power of theone side to have produced”. In the circumstances, the first

interpretation cannot explain why Dunne’s evidence having been admittedwith consent of the Province was not probative enough to receive significant weight. [79] The second

interpretation is based on the inference that Dunne was afraid to confront Bromley while he was alive and couldcontradict him. If the trial judge drew that inference, it could explain the contradiction. The problem is that the trial judge could notproperly draw that inference. [80] There is no evidence to suggest that Dunne was afraid to confront Bromley. Dunne was never asked why he did not presscharges; the Province did not suggest to him that he was afraid; indeed, the Province did not mention his decision not to press charges incross-examination.

In the circumstances, the Province was not entitled to ask the court to draw an adverse inference against Dunne. Southin J.A., referring to the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) said in Steele-Wells v.

Mahood(1995), (BC CA), 4 B.C.L.R. (3d) 57 (C.A.) at para. 5: … It is of the utmost importance, in my view, that an inference should not be sought to be drawn against a witness, whether a litigant or anon-litigant witness, unless the inference which is sought to be drawn is squarely put. … [81] The trial judge relied principally on minor inconsistencies that were peripheral to the main issue in order to assign “low” weightto the similar fact evidence. Those inconsistencies were to be expected because Rich and Dunne were describing two different events.

The trial judge did not focus on the key question, which was whether the similar fact evidence established a connected and probativemodus operandi which bolstered Rich’s description of the events. He erred by failing to give proper weight to the similar fact evidenceof Dunne, which bolstered considerably the credibility of Rich’s evidence that he had been sexually and physically assaulted by Bromleyin the manner he described at Bromley’s cabin. This constituted a palpable and overriding error. III

Summary on Issues of Credibility and Similar Fact Evidence [82] To summarize, the trial judge made palpable and overriding errors in his assessment of the credibility of Rich and in histreatment of the admissible similar fact evidence relating to Dunne. Specifically, he erred in: (

a) drawing an adverse inference against Rich on the ground that he waited until Bromley had died before confronting him, when suchan inference was not supported by any evidence; (

b) misapprehending the evidence with respect to whether Rich had “forgotten” about Bromley’s assaults; (

c) assigning “low weight” to the similar fact evidence of Dunne by unjustifiably discounting the significant similarities, in matters ofmateriality, between Rich’s allegations and those of Dunne’s, when in fact there were strong connecting factors present. [83] Reliance by the trial judge on these matters materially affected his assessment of the credibility of Rich’s evidence and led tohis conclusion that Rich had not led evidence sufficient to satisfy the court that on a balance of probabilities he had been sexuallyassaulted by Bromley. [84] It must be remembered that Rich’s evidence at trial was uncontradicted.

This was not a case of the judge having to weighevidence from conflicting sources (a plaintiff and a defendant) and deciding whether the evidence from the plaintiff was to be believedover that of the defendant or was sufficiently strong to overcome the contradictory evidence and should lead to a finding, on a balance ofprobabilities, of liability. [85] The only thing standing in the way of a finding of liability on the basis of Rich’s evidence was the judge’s finding of Rich’slack of credibility. [86] While an appellate court will usually give great deference to a trial judge’s assessments of credibility, deference will notnecessarily be warranted if the evidentiary and analytical basis for those credibility findings are not supportable or disclose palpable andoverriding error.

As noted in Housen v. Nikolaisen, “[I]t is open to an appellate court to find that an inference of fact made by a trialjudge is clearly wrong” (per Major and Iacobucci JJ at paragraph 22). If the evidentiary and analytical base for the inference is lacking,the resulting inference will be “clearly wrong”. [87] In this case the trial judge’s assessment of Rich’s credibility has been seriously undermined.

Without that adverse finding ofcredibility, Rich’s uncontradicted evidence should have carried the day. [88] The trial judge’s dismissal of Rich’s claim against Bromley must therefore be set aside. [89] The question that must now be addressed is whether a new trial should be ordered or whether this Court may proceed, on theexisting record, to make a proper determination and enter judgment accordingly. [90] Rule 57.23(1)(

f) of the Rules of the Supreme Court, 1986 allows this Court to “make any order which the appeal may require”,and in the course of doing so it may “draw inferences of fact … or make any order which might have been made by the court appealedfrom” (rule 57.23(1)(b)). [91] The two basic considerations that an appellate court must address when deciding a case on the existing record rather thansending it back for retrial are issues of practicality and fairness to the parties: Matchim v. BGI Atlantic Inc. et al, 2010 NLCA 9, 294Nfld. & P.E.I.R. 46 at para. 99. [92] Here, the amounts at issue are relatively small.

There has been a long and expensive trial. The case has been in the courts since2001 and involves events that occurred in 1976. Memories no doubt have faded and witnesses have died. A new trial will be expensive

and probably duplicative. The Court should therefore be careful not to order a retrial unnecessarily and to put the parties to additional expense and delay. [ 93 ] It is true, of course, that the Court is more likely to return a matter for retrial where the evidence is conflicting and the resolution of those conflicts depends on assessments of credibility. See Gillis v. British Columbia Transit , 2001 BCCA 248 , 88 B.C.L.R. (3d) 163, at paras. 10–12 .

However, even where the evidence to be reassessed is oral evidence as opposed to documentary evidence “an appellate court may replace the findings of a trial judge with its own findings where what is at issue is inferences to be drawn from undisputed evidence” ( Matchim at paragraph 102 ; underlining added). [ 94 ] In this case, the judge’s conclusions as to credibility were based on inferences drawn from Rich’s uncontradicted evidence and from the similar fact evidence of Dunne which the judge did not discount on grounds of lack of Dunne’s credibility. [ 95 ] While observing Rich’s demeanour was a factor in the judge’s overall assessment of his credibility, the judge relied on the inferences he drew from his misapprehension of the evidence, as discussed previously, to support those impressions.

He commented: [34] Mr. Rich appeared as a person who did not have a clear current recollection of the events of which he complained.

I formed the impression from listening to him that his testimony was based in large part on a reconstruction of events from his reading prior statements and other evidence. [35] This impression was supported by the fact that Rich apparently didn’t even remember the alleged assaults by Bromley until he saw Bromley’s arrest on television … (Emphasis added.) [ 96 ] From this extract, it appears that the judge formed his “impression” of Rich on the basis that his testimony appeared to be based on a reconstruction of the events from reading prior testimony and other sources.

In the circumstances, where Rich was testifying about events he said occurred over thirty years previously when he was a young boy, it would be expected that he would attempt to refresh his memory of details and to prepare himself by reading prior statements before giving evidence at trial. This fact alone, without more, should not impact on his credibility in any material way.

Any impression the judge had about Rich’s credibility from observing Rich’s demeanour should have been based on more than this. [ 97 ] The only other factor contributing to the judge’s “impression” of Rich was the “support” the judge felt his impression received from the various inferences he drew from the evidence which in his view supported his negative view of Rich’s credibility.

They included the matters discussed previously and for which we have concluded there was no basis for the inferences drawn. [ 98 ] In addition to those matters, however, the judge also referred to a limited number of additional matters that in his view impacted negatively on Rich’s credibility. We will deal with each of these in turn. [ 99 ] Firstly, the judge placed emphasis on the fact that Rich at times was “confused” as to which priest (Bromley or another priest) had assaulted him first and at other times did not identify Bromley as an abuser when he had an opportunity to do so.

The judge, however, does not appear to have considered the concerns expressed in the current case law about placing emphasis on the failure to make timely complaints of abuse. See, for example, the comments of Spies J. in R. v.

T.(J.) , 2011 ONSC 1962 : [78] … it must be remembered that the significance of the complainant’s failure to make a timely complaint about the allegations of sexual assault must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons react to acts of sexual abuse. [ 100 ] This observation is certainly relevant here in light of Rich’s evidence that he “buried” the thoughts about the abuse out of shame and guilt. [ 101 ] The judge also mentioned that Rich had a “monetary incentive” to exaggerate any assault by Bromley.

That, of course is a situation that theoretically always exists when a claim is made for damages for sexual assault.

In this case, however, the judge tied this observation to the fact that, on his view of the evidence, Rich had in the past attributed much more damage to assaults by the other priest rather than Bromley but at trial he said the damage was “equally as bad” (paragraph 38). (At trial, a psychologist who treated Rich also indicated Rich had previously told him that the impact of the abuse by the other priest was significantly greater than the abuse by Bromley, which he testified, was consistent with research that a breach of a trusting relationship tends to have a greater impact than abuse by a stranger: Transcript, June 3, 2011, pp. 37-38.) This conclusion that Rich said at trial that the abuse was equally bad is a mischaracterization of the totality of the evidence on this point. [ 102 ] While Rich did say in cross-examination at one point that “I’d say today it would be basically the same”, he immediately qualified that with the comment, “It’s hard for me, like, to know which hurt more.” (Transcript, June 1, 2010, p. 74).

These comments must also be read in light of his evidence on direct examination, where in answer to a question as to “which of the two priests affected you more”? he answered: I always have trouble with that question.

To weigh the difference – or to weigh the amount of hurt and anger and – that’s involved in – both priests – I mean, it’s hard to weigh which … (Transcript, May 31, 2010, p. 137.) [ 103 ] This sort of qualified, reflective answer hardly seems like the answer that a person who was setting out to exaggerate his claim against Bromley would give. [ 104 ] The other assumption underlying the judge’s conclusions in this regard rests in his observation that when Rich wrote a five-page essay (“Shattered Dreams”) concerning how his trust in the church and its officials was shattered, he only named the other priest in his

allegations (although there was a general reference to “two priests” in the context of abuse suffered by him at the hands of others beingdescribed as not as severe as that committed by the “two priests”).

When Rich was challenged on cross-examination on why he did notfocus more on Bromley, he responded that he was “focusing on one person at a time” (Transcript, June 1, 2010, p. 87) – in other words,he was using the essay as therapy to deal with his demons respecting the abuse at the hands of the other priest at the time; it was notmeant as a comprehensive description of his life of abuse (which is consistent with his statement at the end of the essay that “there wasother sexual abuse by three males”).

He also acknowledged that the other priest and he were very close, that he was like a brother to himand that the relationship was an ongoing one (unlike the one event with Bromley).

In light of these circumstances, it was inappropriatefor the trial judge to regard the absence of detailed revelations about Bromley in Rich’s essay as somehow indicating that Rich was nowexaggerating his claims against Bromley at trial. [105] The judge also mentioned the fact that Rich had a “significant criminal record” which in his view reflected “negatively” onRich’s credibility. (We note however, that those convictions did not relate to truth-related offences like fraud, perjury or false pretenses –except for one

summary conviction offence of fraudulently obtaining transportation in 2003, for which he was sentenced to one day injail for time served.) This fact in itself cannot be enough to disentitle a claimant from pursuing a civil claim in court without at leastconsidering the record in the context of the social conditions of the offender and the circumstances in which the offences occurred. [106] Finally, the judge also drew a negative inference against Rich’s credibility from the fact that other boys who were present withRich and Bromley on the day in question “could have testified on his behalf but did not” (paragraph 42).

That, of course, presupposesthat the reason they did not testify was that they contradicted Rich’s version of events. It also presupposes that they were available andwilling to testify. In fact, the record (Appeal Book, Vol. 1, Tab 2D, pp. 5,6 and 14) indicates that the only two identified potentialwitnesses (K.F. and M.R.) either did not want to get involved and would not cooperate (K.F.) or were deceased (M.R.).

It is worth notingthat it is not uncommon for persons not to want to be exposed as having been involved in incidents involving alleged sexual abuse and todeny that they saw anything in order to resist becoming involved.

This explanation for the failure to call potential witnesses undercutscompletely the reliance by the trial judge on their absence from the trial as a reason for drawing a negative inference with respect toRich’s credibility. [107] It is apparent, therefore, that the basis for the conclusion reached by the trial judge with respect to Rich’s demeanour did not exist,and the inferences that the judge drew from the evidence which were put forward by him to justify a negative conclusion about hiscredibility also did not support the conclusion drawn from his demeanour either.

His credibility assessment is undermined. [108] In these circumstances, therefore, where it is not a question of choosing between conflicting versions of events on the basis ofconflicting evidence, but only drawing credibility inferences from otherwise undisputed evidence, this Court can and, in our view,should, make its own determination. [109] The existing record is adequate for this purpose. It is difficult to see in the circumstances how it could be materially augmentedif the matter were retried. Bromley is deceased and all that would again be able to be presented would be Rich’s version of events.

While perhaps a more intensive or differently-focused cross-examination of Rich could possibly be undertaken, that is not a sufficientreason in itself for a retrial. As noted by Wells J.A., dissenting (but not on this point) in Welcon

(1976) Limited v.

South River (Town),2009 NLCA 59 at paragraph 186, “[T]he parties must be taken to have put forward, at [the first] trial, the evidence they wished the trialjudge to consider.” [110] Accordingly, once it is concluded, as we do, that there is not a sufficient basis for discounting Rich’s evidence on the basis ofcredibility, it follows, in light of the uncontradicted evidence of Rich on the crucial points, supported by the similar fact evidence ofDunne, that Rich has proven on a balance of probabilities that Bromley sexually and physically assaulted him and that Rich is entitled tojudgment of liability in damages against Bromley.

IV LIABILITY OF THE PROVINCE 1. Vicarious Liability [111] The trial judge considered Rich’s claim against the Province based on vicarious liability, which he characterized as “strict or nofault liability of an employer for the actions of employee” within the framework of the decision in Bazley v. Currey, (SCC), [1999] 2 S.C.R. 534.

He described the rationale for this claim as being that “because of the nature of the duty owed to Rich bythe Director and Superintendent and the unprecedented access granted to Bromley in respect of wards of the state and in particular Rich,the Province ought to be held vicariously liable for the alleged assaults perpetrated on Rich by Bromley” (see paragraph 58). [112] The trial judge acknowledged that counsel for Rich had submitted that: [60] … the law has evolved over the years to include more than employees and that a person who is an independent contractor, an agentor even a volunteer may also act in such a way as to fix liability on the person who enjoys or allows that person to carry out certainfunctions on behalf of that person (the putative employer).

The Court must look to the actual relationship between the parties and not beoverly influenced by labels or purely legal relationships. [113] The trial judge distinguished recent Canadian jurisprudence addressing this issue on the basis that Bromley was a “completelyindependent contractor” (see paragraph 65) over which the Province had “no control” or was: [68] … a volunteer, a Roman Catholic priest, who the Director and Superintendent of Whitbourne had no reason to distrust, whooffered some of the residents of Whitbourne, whose behaviour warranted it as a reward, a few hours of respite from the rigours ofinstitutional life, a freedom that they might wish to aspire to in the future if the good behaviour following release was maintained.

Anovernight stay at a private cabin or a movie was a reward for good behaviour and an incentive for continued future actions. [114] The first question in assessing vicarious liability is whether any precedents “clearly” indicate whether, in the factual matrix of thecase, the employer can be vicariously liable for abuse. The trial judge held that there were none. Given that answer, the question thenbecomes whether vicarious liability should be imposed for policy reasons: see Bazley v. Curry, at paragraph 15.

[115] The policy question involves two separate inquiries, though in many cases only one of the two is engaged. This matter wasdiscussed by McLachlin C.J.C. on behalf of the majority in K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403: 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. This was the issue in 671122 Ontario Ltd. v.

Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, 2001SCC 59, where the defendant argued that the tortfeasor was an independent contractor rather than an employee, and hence was notsufficiently connected to the employer to ground a claim for vicarious liability. Second, plaintiffs must demonstrate that the tort issufficiently connected to the tortfeasor’s assigned tasks that the tort can be regarded as a materialization of the risks created by theenterprise.

This was the issue in [Bazley], which concerned whether sexual assaults on children by employees of a residential careinstitution were sufficiently closely connected to the enterprise to justify imposing vicarious liability. … (Emphasis added.) [116] These two issues are of course related. A tort will only be sufficiently connected to an enterprise to constitute a materialization ofthe risks introduced by it, if the tortfeasor is sufficiently closely related to the employer. The trial judge did not distinguish thesequestions.

He conflated the first branch of the policy analysis, the inquiry into the relationship between tortfeasor and defendant, withthe analysis of precedents, rather than with the question as to whether the tort is sufficiently connected to the tortfeasor’s assigned tasksthat the tort can be regarded as a materialization of the risks created by the enterprise. [117] A non-profit enterprise is responsible for the actions of a tortfeasor who is acting on behalf of the enterprise, but not for atortfeasor who is acting on his or her own account: see K.L.B. at paragraph 21.

In assessing whether a tortfeasor is acting on his or herown account, the court can consider the factors linked but not limited to “control” that McLachlin C.J.C. outlined as follows: 22 … As the Court held in Sagaz, “the level of control the employer has over the worker’s activities will always be a factor” (para.47). … [I]t would be unjust to impose vicarious liability for a tort committed in pursuit of the tortfeasor’s own private purposes, or fortortious conduct that could not have been influenced or prevented by the person held vicariously liable ….

Control is not, however, thesole consideration. … Many skilled professionals, for instance, perform specialized work that is far beyond the abilities of theiremployers to supervise; and yet they may reasonably be perceived as acting “on account of” these employers. Control is simply oneindication of whether a worker is acting on behalf of his or her employer ….

Other relevant factors include, as the Court noted in Sagaz,“whether the worker provides his or her own equipment”, “whether the worker hires his or her own helpers” and whether the worker hasmanagerial responsibilities (para. 47). [118] In K.L.B. itself, McLachlin C.J.C. concluded that foster parents do not act on behalf of the government because they are tooindependent in making “day-to-day” decisions: 23 … Foster families serve a public goal — the goal of giving children the experience of a family, so that they may develop intoconfident and responsible members of society.

However, they discharge this public goal in a highly independent manner, free from closegovernment control. Foster parents provide care in their own homes. They use their own “equipment” …. While they do not necessarily“hire” their own helpers, they are responsible for determining who will interact with the children and when. They have complete controlover the organization and management of their household; they alone are responsible for running their home.

The government does notsupervise or interfere, except to ensure that the child and the foster parents meet regularly with their social workers, and to remove thechild if his or her needs are not met. [119] At paragraph 75 of his decision, the trial judge focused on the need to find a “significant connection between the creation orenhancement of risk [by the enterprise] and the wrong that accrues there from, even if unrelated to the employers desires”. He cited thereasons of Cromwell J.A. in G.(B.M.) v.

Nova Scotia (Attorney General), 2007 NSCA 120, 260 N.S.R., (2d) 257, which held that theProvince of Nova Scotia was vicariously liable for sexual assaults perpetrated by a probation officer employed by that province against ayoung delinquent who had been assigned to him for supervision during a period of court imposed probation (paragraph 74).

The trialjudge distinguished G.(B.M.) from the current case, stating that G.(B.M.) was “a classic vicarious liability case involving an employeewhose job it was to supervise the plaintiff, unlike here where Bromley was a volunteer” (paragraph 74). [120] However, in the following paragraph the trial judge properly acknowledged that “the label attached to a person or occupation isnot the determining factor”.

In that respect, he cited paragraph 58 of G.(B.M.): Canadian law uses a “significant connection” test to decide whether an employer should be vicariously liable for intentional andunauthorized wrongs by its employees. Vicarious liability generally will be appropriate in relation to acts by an employee “... where thereis a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to theemployer's desires ...”: Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534 at para. 41.

This significant connection testidentifies situations in which the broad policy objectives of imposing vicarious liability — the provision of an adequate and just remedyand deterrence of wrongful conduct — will be served. [121] Nevertheless, the trial judge analyzed the evidence regarding Bromley’s connection with the School as follows: [76] … It must first be acknowledged that Bromley was a volunteer. He was a Roman Catholic priest who frequently visitedWhitbourne in that capacity to minister to the youths resident there. Bromley was an independent contractor in relation to the province.

He had not been assigned tasks to perform for Whitbourne, although he was given permission to take boys, including in particular LouisRich, to his cabin overnight.

Perhaps the authorities at Whitbourne should have taken more care to check Bromley’s background beforeletting him do so but that goes to negligence on their part, not vicarious or strict liability. [122] The trial judge erred by restricting his analysis to the narrow confines of whether Bromley was an employee or avolunteer/independent contractor rather than focusing on the generic inquiry of “significant connection”, regardless of particular labels. [123] In John Doe v. Bennett, 2004 SCC 17, [2004] 1 S.C.R. 436, the Supreme Court imposed vicarious liability upon the Corporation

of St. George’s for the assaults of Father Bennett against boys.

McLachlin C.J.C. described the imputation of vicarious liability to aprincipal and not just an employer of the tortfeasor as follows: [17] … The doctrine of vicarious liability imputes liability to the employer or principal of a tortfeasor, not on the basis of the fault of theemployer or principal, but on the ground that as the person responsible for the activity or enterprise in question, the employer or principalshould be held responsible for loss to third parties that result from the activity or enterprise. (Emphasis added.) [124] McLachlin C.J.C. wrote: [20] … Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be heldresponsible when those risks emerge and cause loss or injury to members of the public.

Effective compensation is a goal. Deterrence isalso a consideration. The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce therisk of harm in the future. Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts intwo respects. First, the relationship between the tortfeasor and the person against whom liability is sought must be sufficiently close.Second, the wrongful act must be sufficiently connected to the conduct authorized by the employer.

This is necessary to ensure that thegoals of fair and effective compensation and deterrence of future harm are met: K.L.B., supra, at para. 20. (Emphasis added.) [125] The principle underlying the first inquiry was stated by McLachlin C.J.C. in K.L.B. as follows: [20] … Compensation will not be fair where the organization fixed with responsibility for the tort is too remote from the tortfeasor forthe latter to be acting on behalf of it: in such a case, the tort cannot reasonably be regarded as a materialization of the organization’s ownrisks. [126] Applying these principles to the facts here, Bromley was acting on behalf of the Province when he took children to his cabin.

Some of the factors point the other way—Bromley used his own tools, and was not closely supervised. But the critical factor in my viewis that Bromley was exercising delegated authority over the children in his care and was specifically furthering the institution’s “rewardfor good behavior” program. [127] Bromley had no independent power to discipline the children and no independent duty to care for them. He was not anindependent caregiver, like the foster parents in K.L.B.

But while the children were in his care, he exercised vicarious power over them,delegated from the Province. [128] Since Bromley was exercising the Province’s custodial powers on its behalf in furtherance of its custodial policies—since he wastemporarily standing in the Province’s shoes as a care-giver—we can conclude that he was acting on the Province’s account and that hisrelationship with the Province was close enough to support a finding of vicarious liability. [129] The second inquiry is into whether the tort is sufficiently connected to the relationship to justify vicarious liability.

AsMcLachlin J. wrote in Bazley, the factors to be considered in assessing whether a sufficient connection is present were stated in Bazley toinclude but not be limited to: 1. The opportunity that the enterprise afforded the employee to abuse his or her power; 2. The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committedby the employee); 3. The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; 4. The extent of power conferred on the employee in relation to the victim; 5.

The vulnerability of potential victims to wrongful exercise of the employee’s power. [130] With respect to the first factor, opportunity, the trial judge correctly acknowledged that the Province’s grant of permission toBromley to take Rich and other wards on overnight stays at his cabin for swimming and presumably other outdoor and indoor activities“created the opportunity for Bromley to abuse his authority over Rich and sexually assault him”.

However, the trial judge found that thelaw was clear that the creation of such an opportunity for harm was irrelevant “without job-created power” to permit vicarious liability tobe imposed. He relied on E.D.G. v. Hammer, 2003 SCC 52, [2003] 2 S.C.R. 459, para. 10, citing Jacobi v. Griffiths, (SCC), [1999] 2 S.C.R. 570. The former decision arose from a claim for damages arising from the sexual assault of a female studentfrom an Indian reserve by a janitor at a public school in North Vancouver.

There was no indication that anything was amiss so as toarouse suspicion among teachers or administrators at the school and the janitor had a good work record. [131] McLachlin C.J.C., in her reasons, noted at paragraph 9 that the trial judge had: … held that it would not be fair to impose vicarious liability on the Board, because Mr. Hammer’s actions were not sufficientlyconnected to his employment to constitute a materialization of risks created by the Board.

All that the Board did was provide Mr.Hammer with the opportunity to commit the assaults; it did not entrust him with the type of authority or the kind of tasks, that wouldsignificantly increase the risk of abuse. (Emphasis added.) [132] The analysis here must focus on the majority reasons of Binnie J. in Jacobi, where he cited the trial decision in E.D.G. to supportthe proposition “that creation of opportunity without job-created power over the victim or other link between the employment and the

tort will seldom constitute the ‘strong connection’ required to attract vicarious liability”. However, presence of “job-created power” wasnot held to be a mandatory imperative in all cases. [133] In this case, the trial judge erred by strictly requiring evidence of a traditional employer-employee relationship with regard toBromley and the Province as a pre-condition to finding opportunity for creation of the risk of harm.

The highest levels of theadministration of the School granted approval to allow Bromley as an agent, volunteer or independent contractor to take wards into hissole custody and away from the confines of the School, a correctional facility for male youths, for overnight stays without any othersupervision.

Thus, the Province created an opportunity for risk of harm which equates to that which could be created by “job-createdpower” leading to a “materialization of risk” for these youths. [134] The second factor to be considered is the extent to which the wrongful act occurred against the background of the Province’slaudable aim of furthering the correctional mandate of the School.

Any laudable aim which existed here was clearly thwarted byBromley’s actions towards Rich. [135] The third factor is the extent to which the wrongful acts were related to friction, confrontation or intimacy inherent in theemployer’s or principal’s enterprise. The court in G.(B.M.) at paragraph 67 rejected the appellant’s submission that the term “intimacy”was limited to “physical intimacy” and held, relying on Bazley and John Doe v.

Bennett (paragraph 29), that “psychological intimacyencourages victim’s submissions to abuse and increases the opportunity for abuse”. [136] In this case the Province permitted the creation of a circumstance of physical and psychological intimacy with troubled youngboys who were under its care and control for correctional purposes when they were placed in the hands of an agent, or a volunteer,without inspection, assistance or supervision at his private cabin at a location remote from the School. [137] The fourth factor is the extent of power over the victim.

The trial judge erred in concluding that Bromley did not exercise powerover Rich because his contact was “a transitory, safety-related conference of power referable only to the time Rich was in Bromley’scare”. We do not believe this finding is consistent with the findings of the Supreme Court in B.(E.) v. Order of the Oblates of MaryImmaculate in the Province of British Columbia, 2005 SCC 60 , [2005] 3 S.C.R. 45 and in particular the discussion of thepowers, duties and responsibilities of the alleged offender.

At paragraph 30 the Supreme Court, citing its reasons in Bazley, held that thefocus must be on whether: [46] … the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence theharm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition ofvicarious liability – fair and efficient compensation for wrong and deterrence.

This requires trial judges to investigate the employee’sspecific duties and determine whether they gave rise to special opportunities for wrongdoing. (Emphasis added by Supreme Court in B.(E.).) [138] Of particular relevance here is the last sentence of paragraph 46 of Bazley, not referred to in B.(E.) v.

Order of the Oblates ofMary Immaculate in the Province of British Columbia, which reads: “… Because of the peculiar exercises of power and trust thatpervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on itsown often creates a considerable risk of wrongdoing.” (Emphasis added.) [139] The trial judge held: [81] … Bromley was not specifically authorized to do anything in relation to Rich.

Certainly he had no authority to carry out any of thesubstitutional parenting responsibilities of Whitbourne such as education, vocational training, psychological assessment and counselling,discipline, nutrition, personal grooming and the myriad other day-to-day responsibilities assumed by Whitbourne when Rich was sentthere. [140] In our view, the judge incorrectly concluded that Bromley had no parenting responsibilities and no specific authorization and thusno power or dependency relationship.

He was specifically authorized to take Rich and others into his sole care and custody away fromthe facility to a remote location. He was given clothing for them in the form of swim wear and pajamas. He was expected to feed them,house them and presumably take care for their physical and mental well-being by supervising and controlling their activities in order toensure their care and safety. This would have been consistent with some of the statutory responsibilities of the Director and particularlythe Superintendent of the School. The conclusion of the t

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