F.H. v. McDougall, (2008) 260 B.C.A.C. 74 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 15, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 260 B.C.A.C. 74 (SCC);2008 SCC 53;297 DLR (4th) 193;[2008] 11 WWR 414;83 BCLR (4th) 1;61 CR (6th) 1;260 BCAC 74;380 NR 82;60 CCLT (3d) 1;[2008] CarswellBC 2041;AZ-50514295;EYB 2008-148155;JE 2008-1864;[2008] AJ No 54 (QL);[2008] SCJ No 54 (QL);169 ACWS (3d) 346;[2008] ACS no 54;3 LCR 41;439 WAC 74;61 CPC (6th) 1

F.H. v. McDougall (2008), 260 B.C.A.C. 74 (SCC);

      439 W.A.C. 74

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] B.C.A.C. TBEd. OC.028

F.H. (appellant) v. Ian Hugh McDougall (respondent)

F.H. (appellant) v. The Order of the Oblates of Mary Immaculate in the Province of British Columbia (respondent)

F.H. (appellant) v. Her Majesty The Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (respondent)

(32085; 2008 SCC 53; 2008 CSC 53)

Indexed As: F.H. v. McDougall

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

October 2, 2008.

Summary:

The plaintiff, F.H., alleged that he was physically and sexually assaulted when he was a student at the Sechelt Indian Residential School in the 1960s. The plaintiff commenced actions against the Order of the Oblates of Mary Immaculate of British Columbia, McDougall (an Oblate Brother) and Her Majesty the Queen in Right of Canada (the defendants). It was agreed that the court would make a preliminary ruling on certain factual issues.

The British Columbia Supreme Court, in a decision reported [2005] B.C.T.C. Uned. 675; 2005 BCSC 1518, found that F.H. was sexually assaulted by McDougall and was strapped as punishment an undetermined number of times by McDougall while a student at the school. The defendants appealed.

The British Columbia Court of Appeal, Ryan, J.A., dissenting, in a decision reported 239 B.C.A.C. 222; 396 W.A.C. 222; 2007 BCCA 212, allowed the appeals against the trial judge's finding that McDougall sexually assaulted F.H., but dismissed the appeals respecting the finding that McDougall strapped F.H. F.H. appealed.

The Supreme Court of Canada allowed the appeal and restored the decision of the trial judge.

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.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The plaintiff sued an Order of the Oblates, an Oblate Brother and the federal Crown (the defendants), alleging that he was sexually assaulted when he was a student at a residential school in the 1960s - A judge made a preliminary factual ruling that the plaintiff was sexually assaulted by the Oblate Brother - The defendants appealed, claiming that the trial judge's reasons were inadequate - The British Columbia Court of Appeal held that while the trial judge's reasons were adequate, the appeal would be allowed on other grounds - The plaintiff appealed - On appeal, the Attorney General of Canada again raised the argument that the trial judge's reasons were inadequate - The Supreme Court of Canada agreed with the Court of Appeal that the reasons were adequate - The court stated that an appeal court could not intervene merely because it believed that the trial judge did a poor job of expressing herself - Nor was a failure to give adequate reasons a free standing basis for appeal - See paragraphs 97 to 101.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The Supreme Court of Canada stated that "An unsuccessful party may well be dissatisfied with the reasons of a trial judge, especially where he or she was not believed. Where findings of credibility must be made, it must be recognized that it may be very difficult for the trial judge to put into words the process by which the decision is arrived at ... But that does not make the reasons inadequate. In R. v. R.E.M. ... released at the same time as this decision, McLachlin, C.J., has explained that credibility findings may involve factors that are difficult to verbalize: 'While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge in saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence in convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter, that does not always lend itself to precise and complete verbalization. [para. 49]' Nor are reasons inadequate because in hindsight, it may be possible to say that the reasons were not as clear and comprehensive as they might have been" - See paragraphs 100 and 101.

Courts - Topic 585.1

Judges - Duties - Respecting findings of fact - [See both Courts - Topic 583 ].

Evidence - Topic 102

Degree, standard or burden of proof - Standard or degree of proof - Proof in civil cases - The plaintiff sued an Order of the Oblates, an Oblate Brother and the federal Crown (the defendants), alleging that he was sexually assaulted when he was a student at a residential school in the 1960s - The trial judge made a preliminary factual ruling that the plaintiff was sexually assaulted by the Oblate Brother - The defendants appealed - The British Columbia Court of Appeal concluded that the trial judge failed to consider whether the facts had been proven "to the standard commensurate with the allegation" and had failed to "[s]crutinize the evidence in the manner required and thereby erred in law" - The plaintiff appealed - The Supreme Court of Canada allowed the appeal and restored the judgment of the trial judge - The court stated that there was only one civil standard of proof (i.e., proof on a balance of probabilities) and therefore the appellate court erred in holding the trial judge to a higher standard - See paragraphs 51 and 52.

Evidence - Topic 102

Degree, standard or burden of proof - Standard or degree of proof - Proof in civil cases - The Supreme Court of Canada reviewed the jurisprudence and identified five approaches to the standard of proof adopted by courts in civil cases where criminal or morally blameworthy conduct was alleged - The court rejected those approaches and stated that it was time to say, once and for all in Canada, that there was only one civil standard of proof at common law and that was proof on a balance of probabilities - In all civil cases, trial judges had to scrutinize the relevant evidence with care to determine whether it was more likely than not that an alleged event occurred - See paragraphs 26 to 49.

Evidence - Topic 104

Degree, standard or burden of proof - Standard or degree of proof - Proof of crime in civil cases - [See both Evidence - Topic 102 ].

Evidence - Topic 464

Functions of counsel, judge and jury - Credibility of evidence - [See both Evidence - Topic 102 and Evidence - Topic 4022 ].

Evidence - Topic 4022

Witnesses - Credibility - Considerations - In R. v. D.W. (SCC) (aka R. v. W.(D)), the court established a three-step charge to help the jury assess conflicting evidence between the victim and the accused in cases of criminal prosecutions of sexual assaults: "First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused" - The Supreme Court of Canada stated: "However, in civil cases in which there is conflicting testimony, the judge is deciding whether a fact occurred on a balance of probabilities. In such cases, provided the judge has not ignored evidence, finding the evidence of one party credible may well be conclusive of the result because that evidence is inconsistent with that of the other party. In such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant as in this case. W.(D.) is not an appropriate tool for evaluating evidence on the balance of probabilities in civil cases." - See paragraphs 82 to 86.

Evidence - Topic 5202

Witnesses - Corroboration - General principles - When required - The Supreme Court of Canada stated that there was no legal requirement of corroboration in civil cases in which sexual assault was alleged - See paragraphs 77 to 81.

Practice - Topic 8803

Appeals - General principles - Whether trial judge must give reasons for rejecting evidence or for credibility findings - [See both Courts - Topic 583 ].

Practice - Topic 8820

Appeals - General principles - Duty of appellate court re findings of credibility by trial judge - The plaintiff sued an Order of the Oblates, an Oblate Brother and the federal Crown (the defendants), alleging that he was sexually assaulted when he was a student at a residential school in the 1960s - The trial judge made a preliminary factual ruling that the plaintiff was sexually assaulted by the Oblate Brother - The defendants appealed - The British Columbia Court of Appeal concluded that the trial judge had failed to "[s]crutinize the evidence in the manner required and thereby erred in law" (i.e., erred in dealing with the inconsistencies in the plaintiff's evidence) - The plaintiff appealed - The Supreme Court of Canada allowed the appeal on a standard of proof issue - However, the court opined that with respect to the finding that the trial judge failed to scrutinize the plaintiff's evidence in a manner required by law, the appellate court incorrectly substituted its credibility assessment for that of the trial judge - An appellate court was only permitted to intervene when the trial judge was shown to have committed a palpable and overriding error or made findings of fact that were clearly wrong, unreasonable or unsupported by the evidence - The appellate court made no such finding in this case - See paragraphs 54 to 76.

Torts - Topic 9945

Evidence and proof - Proof - Standard of proof - [See both Evidence - Topic 102 ].

Cases Noticed:

H.F. v. Canada (Attorney General) et al., [2002] B.C.T.C. 325; 2002 BCSC 325, refd to. [para. 8].

R. v. W.(D.) - see R. v. D.W.

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 19].

Bater v. Bater, [1950] 2 All E.R. 458, refd to. [para. 27].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 29].

Dalton Cartage Co. v. Continental Insurance Co. and St. Paul Fire and Marine Insurance Co., [1982] 1 S.C.R. 164; 40 N.R. 135, refd to. [para. 30].

Heath v. College of Physicians and Surgeons (Ont.) (1997), 102 O.A.C. 268; 6 Admin. L.R.(3d) 304 (Div. Ct.), refd to. [para. 31].

R (McCann) v. Crown Court at Manchester, [2003] 1 A.C. 787; [2002] UKHL 39, refd to. [para. 32].

H. et al., Re, [1996] A.C. 563; 192 N.R. 52 (H.L.), refd to. [para. 33].

B (Children), Re, [2008] 3 W.L.R. 1; [2008] UKHL 35, refd to. [para. 34].

Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154, refd to. [para. 41].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 41].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 54].

R. v. B. (R.H.) - see R. v. Burns (R.H.).

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, refd to. [para. 55].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 55].

R. v. R.W.B. (1993), 24 B.C.A.C. 1; 40 W.A.C. 1 (C.A.), refd to. [para. 57].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 72].

R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 84].

Faryna v. Chorny, [1952] 2 D.L.R. 354, refd to. [para. 88].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 98].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 98].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 100].

Authors and Works Noticed:

Rothstein, Linda R., Centa, Robert A., and Adams, Eric, Balancing Probabilities: The Overlooked Complexity of the Civil Standard of Proof, in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence (2004), pp. 456 [para. 26]; 466 [para. 43].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 154 [para. 42].

Counsel:

Allan Donovan, Karim Ramji and Niki Sharma, for the appellant;

Bronson Toy, for the respondent, Ian Hugh McDougall;

F. Mark Rowan, for the respondent, The Order of the Oblates of Mary Immaculate in the Province of British Columbia;

Peter Southey, Christine Mohr and Andrea Bourke, for the respondent, Her Majesty The Queen.

Solicitors of Record:

Donovan & Company, Vancouver, B.C., for the appellant;

Forstrom Jackson, Vancouver, B.C., for the respondent, Ian Hugh McDougall;

Macaulay McColl, Vancouver, B.C., for the respondent, The Order of the Oblates of Mary Immaculate in the Province of British Columbia;

Attorney General of Canada, Toronto, Ontario, for the respondent, Her Majesty The Queen.

This appeal was heard on May 15, 2008, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The following decision was delivered for the court, in both official languages, by Rothstein, J., on October 2, 2008.