D.W. v. Canada (Attorney General) and Starr, 1999 SKQB 187

• Judge: Maurice, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 15, 1999
• Jurisdiction: Saskatchewan
• Citations: 1999 SKQB 187;(1999), 187 Sask.R. 21 (QB);187 Sask R 21

D.W. v. Can. (A.G.) (1999), 187 Sask.R. 21 (QB)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. NO.050

D.W. (plaintiff) v. Attorney General of Canada and William Starr (defendants)

(1997 Q.B.G. No. 2708; 1999 SKQB 187)

Indexed As: D.W. v. Canada (Attorney General) and Starr

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Maurice, J.

November 15, 1999.

Summary:

The plaintiff sued for damages for physical and sexual assault by Starr, the administrator of a residential school established by the Government of Canada.

The Saskatchewan Court of Queen's Bench allowed the action. The court awarded judg­ment against Starr for $169,500 and against the Government of Canada, who was vicari­ously liable, for $144,500.

Crown - Topic 1527

Torts by Crown - Liability for acts of servants - When liable - The plaintiff sued for damages for sexual assault by Starr, the administrator of a residential school estab­lished by the Government of Canada - Canada constituted Starr the plaintiff's legal guardian with full, 24-hour-a-day, parental authority and control over him during the time he was a student at the residence (five years) and allowed Starr unfettered access to the plaintiff during this time - The assaults occurred on two occa­sions - Once in Starr's office and once in his car when they were returning from activities organized by Starr for the stu­dents with Canada's sanction - The Saskatchewan Court of Queen's Bench concluded that Canada was vicariously liable for Starr's battery of the plaintiff - See paragraphs 23 to 26.

Crown - Topic 1578

Torts by Crown - Negligence - Sexual abuse by employees - The plaintiff sued for damages for sexual assault by Starr, the administrator of a residential school estab­lished by the Government of Canada - Canada constituted Starr the plaintiff's legal guardian with full, 24-hour-a-day, parental authority and control over him from 1977 to 1982 and allowed Starr unfettered access to the plaintiff during this time - The plaintiff argued that Canada was negligent by failing to properly evalu­ate, monitor and investigate Starr resulting in his assault - The Saskatchewan Court of Queen's Bench held that Canada was not negli­gent - Canada was not aware of any sexual misconduct - There were some allegations but they were dismissed - Because of Starr's position and power, he cowed the staff and students into silence and kept the abuse from his superior's knowledge - See paragraphs 4 to 18.

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - [See Damage Awards - Topic 627 ].

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The plaintiff sued for damages for sexual assault by Starr, the administrator of a residential school established by the Gov­ernment of Canada - There were two assaults - The first time Starr fondled the plaintiff's penis and inserted his finger in his anus - The second time Starr forced him to perform fellatio - The plaintiff suffered from a post-traumatic stress disorder, depression and substance dependency - He suffered from sleeping difficulties, panic attacks, lack of trust and intimacy and confusion about gender preference - The Saskatchewan Court of Queen's Bench allowed the action - The court awarded $65,000 for nonpecun­iary damages, $69,500 for pretrial loss of earnings, $10,000 for aggravated damages and $25,000 for punitive damages - See para­graphs 27 to 58.

Damage Awards - Topic 2013

Exemplary or punitive damages - Sexual assault (incl. sexual abuse) - [See Damage Awards - Topic 627 ].

Damage Awards - Topic 2408

Aggravated damages - Sexual assault - [See Damage Awards - Topic 627 ].

Equity - Topic 3611

Fiduciary or confidential relationships - Crown - The plaintiff sued for damages for sexual assault by Starr, the administra­tor of a residential school established by the Gov­ernment of Canada - Canada constituted Starr the plaintiff's legal guard­ian with full, 24-hour-a-day, parental authority and control over him from 1977 to 1982 and allowed Starr unfettered access to the plaintiff during this time - The plaintiff argued that Canada breached its fiduciary duty to him when it failed to prevent Starr's battery of him - The Saskatchewan Court of Queen's Bench held that Canada was not liable for breach of fiduciary duty - Starr abused his position of power over the plaintiff for personal advantage - Canada did not - See para­graph 19.

Master and Servant - Topic 3679

Liability of master for acts of servant - Torts - Acts in course of employment - [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 2530

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

Cases Noticed:

Murray v. Saskatoon, [1952] 2 D.L.R. 499 (Sask. C.A.), refd to. [para. 2].

C.A. et al. v. Critchley et al. (1998), 133 B.C.A.C. 248; 184 W.A.C. 248; 166 D.L.R.(4th) 475 (C.A.), refd to. [para. 4].

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

P.A.B. v. Children's Foundation et al. (1999), 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119; 174 D.L.R.(4th) 45, refd to. [para. 23].

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; 174 D.L.R.(4th) 71 (S.C.C.), refd to. [para. 23].

V.P. v. Canada (Attorney General) and Starr (1999), 186 Sask.R. 161 (Q.B.), appld. [para. 26].

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; [1997] 1 W.W.R. 97, appld. [para. 33].

Graham et al. v. Rourke (1990), 40 O.A.C. 301; 74 D.L.R.(4th) 1 (C.A.), refd to. [para. 37].

S.P. v. F.K., [1997] 3 W.W.R. 161; 150 Sask.R. 173 (Q.B.), refd to. [para. 44].

J.M.T. v. F.A.D. and J.A.D., [1995] 6 W.W.R. 92; 130 Sask.R. 270 (Q.B.), appld. [para. 47].

J.C. v. R.K., [1995] 8 W.W.R. 570; 133 Sask.R. 65 (Q.B.), appld. [para. 47].

S.P. v. F.K., [1997] 3 W.W.R. 161; 150 Sask.R. 173 (Q.B.), appld. [para. 47].

Peeters v. Canada (1993), 163 N.R. 209; 108 D.L.R.(4th) 471; 18 C.C.L.T.(2d) 136 (F.C.A.), refd to. [para. 56].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289, refd to. [para. 59].

Statutes Noticed:

Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2, sect. 8 [para. 59].

Authors and Works Noticed:

Cooper-Stephenson, Ken, Personal Injury Damages in Canada (2nd Ed.), p. 522 [para. 28].

Counsel:

M.O. Laprairie, Q.C., J.D. Scott, C.D. Hadubiak and J.P. Hardy, for D.W.;

T.G.H. Kristiansen, J.D.R. Bonthoux, K.M. Jones and C.J. Bernier, for the Attorney General of Canada.

This action was heard before Maurice, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on November 15, 1999.