B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120

• Jurisdiction: Nova Scotia
• Judge: Cromwell, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Citation: 2007 NSCA 120,(2007), 260 N.S.R.(2d) 257 (CA)
• Date: 11 December 2007

B.M.G. v. N.S. (A.G.) (2007), 260 N.S.R.(2d) 257 (CA);

    831 A.P.R. 257

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. DE.027

Attorney General of Nova Scotia (appellant/respondent by cross-appeal) v. B.M.G. (respondent/appellant by cross-appeal)

(CA No. 278152; 2007 NSCA 120)

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

Nova Scotia Court of Appeal

Cromwell, Saunders and Oland, JJ.A.

December 11, 2007.

Summary:

In 1977, the 13 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, in a judgment reported (2007), 250 N.S.R.(2d) 154; 796 A.P.R. 154, 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. The parties subsequently made written submissions on costs and disbursements.

The Nova Scotia Supreme Court, in a judgment reported (2007), 252 N.S.R.(2d) 221; 804 A.P.R. 221, awarded the plaintiff lump sum costs of $50,000, plus $30,000 for disbursements. The Attorney General appealed the finding of vicarious liability and the assessment of damages and applied under s. 20(4) of the Proceedings Against the Crown Act to suspend payment of the judgment pending the appeal, which was scheduled for hearing in four months. The plaintiff cross-appealed the dismissal of his claims in negligence and breach of fiduciary duty.

The Nova Scotia Court of Appeal, per Fichaud, J.A., in a judgment reported (2007), 254 N.S.R.(2d) 254; 810 A.P.R. 254, suspended payment of the judgment on condition that the province pay the full amount ($723,125) to the plaintiff's solicitors in trust. The plaintiff was entitled to payment of $100,000 of the trust funds if he provided a mortgage as security. Otherwise, the full amount would remain held in trust pending the outcome of the appeal.

The Nova Scotia Court of Appeal dismissed both the appeal and the cross-appeal. The trial judge did not err in finding vicarious liability, dismissing the claims in negligence and breach of fiduciary duty, or in assessing damages.

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 13 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 trial judge 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 - The Nova Scotia Court of Appeal held that the trial judge did not err in finding the province vicariously liable, or in dismissing the claim based in negligence and breach of fiduciary duty - See paragraphs 36 to 82.

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 13 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 trial judge 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 trial judge 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 - The Nova Scotia Court of Appeal dismissed the defendant's appeal - The trial judge committed no error in principle - The damages awarded fell within the appropriate range and were not inordinately high - See paragraphs 114 to 191.

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 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The Nova Scotia Court of Appeal stated that "an award of non-pecuniary damages in sexual battery cases ought to take into account the functions of the award. These are to provide solace for the victim's pain and suffering and loss of enjoyment of life, to vindicate the victim's dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts" - See paragraph 132.

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 2500

Vicarious liability - General principles - General - The Nova Scotia Court of Appeal stated that "vicarious liability may be appropriately imposed even if the policy justification of deterrence is not strong in the particular case" - See paragraph 75.

Torts - Topic 2530

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

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 38].

Davidson et al. v. Nova Scotia Government Employees Union (2005), 231 N.S.R.(2d) 245; 733 A.P.R. 245; 2005 NSCA 51, refd to. [para. 38].

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. 58].

Bazley v. Curry - see P.A.B. v. Children's Foundation et al.

John Doe v. Bennett et al., [2004] 1 S.C.R. 436; 318 N.R. 146; 236 Nfld. & P.E.I.R. 215; 700 A.P.R. 215, refd to. [para. 67].

London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, refd to. [para. 73].

London Drugs Ltd. v. Kuehne & Nagel International Ltd. - see London Drugs Ltd. v. Brassart and Vanwinkel.

G.T.-J. et al. v. Griffiths et al., [1999] 2 S.C.R. 570; 241 N.R. 201; 124 B.C.A.C. 161; 203 W.A.C. 161, refd to. [para. 77].

Jacobi v. Griffiths - see G.T.-J. et al. v. Griffiths et al.

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 92].

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1, refd to. [para. 96].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 97].

Bellam v. Li, [2002] N.S.J. No. 284 (S.C.), refd to. [para. 104].

R. v. A.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641 (C.A.), refd to. [para. 104].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601, refd to. [para. 118].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 121].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 299; 19 N.R. 50; 8 A.R. 182, refd to. [para. 122].

Sharpe v. Abbott (2007), 250 N.S.R.(2d) 228; 796 A.P.R. 228; 2007 NSCA 6, refd to. [para. 123].

Thornton v. Board of School Trustees of District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 123].

John Doe v. O'Dell et al., [2003] O.T.C. 821; 230 D.L.R.(4th) 383 (Sup. Ct.), refd to. [para. 124].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 126].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 128].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 128].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 128].

Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161, refd to. [para. 129].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24, refd to. [para. 134].

Blackwater et al. v. Plint et al., [2001] B.C.T.C. 997 (S.C.), refd to. [para. 134].

J.R.S. et al. v. Glendinning et al., [2004] O.T.C. 102; 237 D.L.R.(4th) 304 (Sup. Ct.), refd to. [para. 137].

S.Y. v. F.G.C. (1989), 78 B.C.A.C. 209; 128 W.A.C. 209; 26 B.C.L.R.(3d) 155 (C.A.), refd to. [para. 143].

V.P. v. Canada (Attorney General) and Starr (1999), 186 Sask.R. 161; 1999 SKQB 180, dist. [para. 148].

Curran v. MacDougall et al., [2006] B.C.T.C. 933; 2006 BCSC 933, dist. [para. 148].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, dist. [para. 148].

M.B. v. British Columbia, [2003] 2 S.C.R. 477; 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161, refd to. [para. 155].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 157].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 158].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 173].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (9th Ed. 1998), p. 409 [para. 57].

Waddams, Stephen M., The Law of Damages (Rev. 2nd Ed. 1991) (Looseleaf), paras. 3.360 [para. 175]; 13.30 [para. 172].

Counsel:

Glenn R. Anderson, Q.C., and Terry Potter, for the appellant;

Kevin C. MacDonald, for the respondent.

This appeal and cross-appeal were heard on September 19, 2007, at Halifax, N.S., before Cromwell, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.

On December 11, 2007, Cromwell, J.A., delivered the following judgment for the Court of Appeal.