B.M.G. v. Nova Scotia (Attorney General), (2007) 250 N.S.R.(2d) 154 (SC)

JudgeEdwards, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateJanuary 29, 2007
JurisdictionNova Scotia
Citations(2007), 250 N.S.R.(2d) 154 (SC);2007 NSSC 27

B.M.G. v. N.S. (A.G.) (2007), 250 N.S.R.(2d) 154 (SC);

    796 A.P.R. 154

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JA.061

B.M.G. (plaintiff) v. Attorney General of Nova Scotia (defendant)

(SH No. 152960; 2007 NSSC 27)

Indexed As: B.M.G. v. Nova Scotia (Attorney General)

Nova Scotia Supreme Court

Edwards, J.

January 29, 2007.

Summary:

In 1977, the 14 year old plaintiff was sexually abused on multiple occasions by his probation officer. The plaintiff had also been subjected to persistent mental and physical abuse at home by his adoptive parents. The plaintiff brought an action for damages against the province (officer's employer), alleging breach of fiduciary duty, negligence and vicarious liability.

The Nova Scotia Supreme Court held that the province was vicariously liable for its employee's sexual abuse of the plaintiff. The court was satisfied that there was a causal connection between the plaintiff's chronic post traumatic stress disorder, which was in partial remission, and the sexual abuse. The claim in negligence and for breach of fiduciary duty was dismissed. The court awarded $125,000 general damages (including aggravated damages) and $500,000 for past and future loss of income.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Crown - Topic 1527

Torts by and against Crown - Liability of Crown for acts of servants - When Crown liable - In 1977, the 14 year old plaintiff was sexually abused on multiple occasions by his probation officer (Lalo) - At issue was whether the province, as employer, was liable and on what basis - The Nova Scotia Supreme Court held that the province was not negligent, as the province did not know or ought to have known that Lalo was abusing children - There was no history of inappropriate behaviour that would have disqualified Lalo from being a probation officer - Given the standards and level of awareness in the 1970's, the sexual abuse was not reasonably foreseeable - Although the province owed the plaintiff a fiduciary duty, that duty was not breached where there was no evidence that the province placed its own interests over that of children under its care - However, the province was vicariously liable for the sexual abuse where there existed a "significant connection" between the creation of the risk that a probation officer would abuse his authority and the wrong (sexual abuse) that accrued - Further, vicarious liability furthered the broader policy rationales of compensating victims like the plaintiff and deterring future misconduct - Notwithstanding that the province acted reasonably, it created the enterprise and the risk, making it fair that it bear the loss - See paragraph 1 to 152.

Crown - Topic 1578

Torts by and against Crown - Negligence by Crown - Sexual abuse by employees - [See Crown - Topic 1527 ].

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - In 1977, the 14 year old plaintiff was sexually abused on multiple occasions by his probation officer - Oral sex and anal intercourse (rape) were involved - The plaintiff had also been subjected to physical and mental abuse by his adoptive parents - The plaintiff fled the province, used an alias for years and never settled down to any particular occupation - Although he was very intelligent, the plaintiff only completed grade 7 - The plaintiff, now 43, was diagnosed as having chronic post traumatic stress disorder, which was in partial remission - Over the years, the plaintiff lost educational, career and relationship opportunities due to his emotional state - The defendant (province) submitted that the plaintiff's condition resulted solely or partially from his abusive upbringing - The Nova Scotia Supreme Court held that this was a "crumbling skull" case, where there was a measurable risk that the plaintiff's pre-existing condition (problems resulting from parental abuse) would have detrimentally affected him in the future even if the sexual abuse had not occurred - However, it was clear that there was a causal connection between the sexual abuse and the plaintiff's mental state - But for that sexual abuse, the court was satisfied that the plaintiff would have continued his educational pursuits and enhanced his present and past ability to earn income - The court awarded $125,000 general damages (including aggravated damages) and $500,000 for past and future loss of income - See paragraphs 153 to 188.

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - [See Damage Awards - Topic 492 ].

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - [See Damage Awards - Topic 492 ].

Damage Awards - Topic 2408

Aggravated damages - Sexual assault (incl. sexual abuse) - [See Damage Awards - Topic 492 ].

Damages - Topic 508

Limits of compensatory damages - General - Causes independent of wrongful act - [See Damage Awards - Topic 492 ].

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - [See Damage Awards - Topic 492 ].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See Crown - Topic 1527 ].

Master and Servant - Topic 3703

Liability of master for acts of servant - Torts - Wilful acts - Sexual abuse - [See Crown - Topic 1527 ].

Torts - Topic 61

Negligence - Causation - Causal connection - [See Damage Awards - Topic 492 ].

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - [See Crown - Topic 1527 ].

Cases Noticed:

Blackwater et al. v. Plint et al. (2005), 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 107].

M.M. v. R.F. et al. (1997), 101 B.C.A.C. 97; 164 W.A.C. 97; 52 B.C.L.R.(3d) 127 (C.A.), refd to. [para. 108].

C.A. et al. v. Critchley et al. (1998), 113 B.C.A.C. 248; 184 W.A.C. 248 (C.A.), refd to. [para. 109].

John Doe v. O'Dell et al., [2003] O.T.C. 821 (Sup. Ct.), refd to. [para. 110].

K.L.B. et al. v. British Columbia et al. (2003), 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 113].

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119, refd to. [para. 117].

John Doe v. Bennett et al. (2004), 318 N.R. 146; 236 Nfld. & P.E.I.R. 215; 700 A.P.R. 215; 2004 SCC 17, refd to. [para. 138].

G.T.-J. et al. v. Griffiths et al. (1999), 241 N.R. 201; 124 B.C.A.C. 161; 203 W.A.C. 161 (S.C.C.), dist. [para. 147].

S.G.H. v. Gorsline et al. (2004), 354 A.R. 46; 329 W.A.C. 46; 2004 CarswellAlta 688 (C.A.), dist. [para. 148].

John Doe v. Avalon East School Bd. (2004), 244 Nfld. & P.E.I.R. 153; 726 A.P.R. 153; 2004 CarswellNfld 378 (T.D.), refd to. [para. 149].

E.B. v. Order of the Oblates of Mary Immaculate (B.C.) et al. (2005), 340 N.R. 202; 217 B.C.A.C. 1; 358 W.A.C. 1 (S.C.C.), refd to. [para. 150].

Athey v. Leonati et al. (1996), 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 153].

S.Y. v. F.G.C. (1996), 78 B.C.A.C. 209; 128 W.A.C. 209 (C.A.), refd to. [para. 164].

J.R.S. et al. v. Glendinning et al., [2004] O.T.C. 102 (Sup. Ct.), refd to. [para. 165].

V.P. v. Canada (Attorney General) and Starr (2000), 186 Sask.R. 161; 1999 SKQB 180, dist. [para. 168].

Curran v. MacDougall et al., [2006] B.C.T.C. 933; 2006 BCSC 933, dist. [para. 168].

C.M. v. Canada (Attorney General) et al. (2004), 248 Sask.R. 1; 2004 SKQB 174, dist. [para. 169].

Poirier v. Dyer and Dyer (1989), 91 N.S.R.(2d) 119; 233 A.P.R. 119 (T.D.), refd to. [para. 177].

Authors and Works Noticed:

Fleming, John G., An Introduction to the Law of Torts (2nd Ed. 1986), pp. 397, 398 [para. 108].

Counsel:

Kevin MacDonald, for the plaintiff;

Glenn Anderson, Q.C., and Terry Potter, for the defendant.

This action was heard on November 27-30 and December 1 and 4-6, 2006, at Halifax, N.S., before Edwards, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 29, 2007.

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    • 16 d5 Março d5 2018
    ...2295; B.(M.) v. 2014052 Ontario Ltd., 2012 ONCA 135; B.(B.P.) v. B.(M.M.), 2009 BCCA 365; G.(B.M.) v. Nova Scotia (Attorney General), 2007 NSSC 27; G.(B.M.) v. Nova Scotia (Attorney General), 2007 NSCA 120; Young v. Bella, 2006 SCC 3; V.P. v. Canada, 1999 SKQB 180; Curran v. MacDougall, 200......
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    ...Annapolis (County) (1996), 153 N.S.R.(2d) 278; 450 A.P.R. 278 (S.C.), refd to. [para. 53]. B.M.G. v. Nova Scotia (Attorney General) (2007), 250 N.S.R.(2d) 154; 796 A.P.R. 154; 2007 CarswellNS 39; 2007 NSSC 27, affd. (2007), 260 N.S.R.(2d) 257; 831 A.P.R. 257; 2007 NSCA 120, refd to. [para. ......
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2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Limiting Principles
    • 21 d6 Junho d6 2014
    ...(3d) 293, [1995] 9 WWR 85 (SC) .................................................................. 41 BMG v Nova Scotia (Attorney General), 2007 NSSC 27, aff’d 2007 NSCA 120 ................................................................................... 245 BMW of North America Inc v Gor......
  • Compensation for Harm to Intangible Interests: Non-pecuniary and Aggravated Damages
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Compensatory Damages
    • 21 d6 Junho d6 2014
    ...see JRS v Glendinning , [2004] OJ No 285 (SCJ); Evans v Sproule , [2008] OJ No 4518 (SCJ); BMG v Nova Scotia (Attorney General) , 2007 NSSC 27, aff’d 2007 NSCA 120; DM v WW , 2013 ONSC 4176; CS(1) v JS , 2013 ONSC 3290. 17 Above note 13. REMEDIES: THE LAW OF DAMAGES 246 recklessness) that h......

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