Canada (Attorney General) v. H. L.,

• Jurisdiction: Saskatchewan
• Judge: Cameron, Vancise and Lane, JJ.A.
• Neutral Citation: 2002 SKCA 131
• Court: Court of Appeal (Saskatchewan)
• Date: 14 December 2001
• Citation: 2002 SKCA 131,(2002), 227 Sask.R. 165 (CA),[2003] 5 WWR 421,[2002] SJ No 702 (QL),227 Sask R 165,287 WAC 165,227 SaskR 165,(2002), 227 SaskR 165 (CA),287 W.A.C. 165,227 Sask.R. 165,[2002] S.J. No 702 (QL)

H.L. v. Can. (A.G.) (2002), 227 Sask.R. 165 (CA);

    287 W.A.C. 165

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. DE.072

Attorney General of Canada (appellant) v. H.L. (respondent) and William Starr (non-party)

(No. 336; 2002 SKCA 131)

Indexed As: H.L. v. Canada (Attorney General) et al.

Saskatchewan Court of Appeal

Cameron, Vancise and Lane, JJ.A.

December 2, 2002.

Summary:

The plaintiff claimed that he was sexually assaulted by Starr, while a member of a boxing club operated by Canada and administered by Starr on its behalf. He sued Starr and Canada.

The Saskatchewan Court of Queen's Bench, in a decision reported at 208 Sask.R. 183, allowed the plaintiff's action, held that Canada was vicariously liable for Starr's actions and awarded damages.

The Saskatchewan Court of Queen's Bench, in a decision reported at 210 Sask.R. 114, awarded prejudgment interest from the date of service of the statement of claim.

The Saskatchewan Court of Queen's Bench, in a decision reported at 211 Sask.R. 114, determined the issue of costs. Canada appealed the finding of vicarious liability against it. Alternatively, Canada appealed the assessment of damages and the award of pretrial interest. The plaintiff cross-appealed the trial judge's assessment of damages.

The Saskatchewan Court of Appeal allowed Canada's appeal with respect to the damage award for past and future loss of earning capacity and prejudgment interest. The court allowed the cross-appeal with respect to the cost of future care. The appeal and cross-appeal were otherwise dismissed.

Courts - Topic 8203

Provincial courts - Saskatchewan - Court of Appeal - Jurisdiction - General - The Saskatchewan Court of Appeal discussed the Court of Appeal Act, 2000, including the right of appeal conferred by s. 7(2)(a) and augmented by s. 13, and the powers conferred on the court by ss. 12(1) and 14 - See paragraphs 8 to 78.

Crown - Topic 1527

Torts by and against Crown - Liability of Crown for acts of servants - When Crown liable - In his early teens the plaintiff was subjected to two acts of masturbation by the defendant Starr, while a member of a boxing club operated by the defendant Canada and administered by Starr on its behalf - The trial judge held that Canada was vicariously liable for Starr's misconduct - The Saskatchewan Court of Appeal affirmed the finding of vicarious liability - See paragraphs 103 to 170.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - In his early teens the plaintiff was subjected to two acts of masturbation by the defendant Starr who worked for the defendant Canada - The trial judge held that Canada was vicariously liable for Starr's misconduct - The trial judge held that it would be inappropriate to award damages for cost of future care where the plaintiff was a status Indian entitled to non-insured health care benefits payable by Canada and therefore would not be put to any additional expense for future care or education - On appeal, the Saskatchewan Court of Appeal awarded the plaintiff $6,500 for cost of future care - None of the forms of therapy available to the plaintiff as a status Indian was geared to the long-term therapy of the kind suggested in the evidence - See paragraphs 259 to 263.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The plaintiff was subjected to two acts of masturbation by Starr, while a member of a boxing club operated by Canada and administered by Starr on its behalf - The trial judge awarded the plaintiff $60,000 general damages - The court allocated that amount to two categories - $40,000 was for suffering (emotional distress and psychological problems of anxiety, frustration, reoccurring bad dreams, inability to cope with alcohol and concerns that his children also might be sexually abused) - $20,000 was for loss of amenities (inability to maintain an intimate relationship with his significant other, difficulty in socializing and difficulty pursuing meaningful employment, etc.) - The trial judge awarded a further $20,000 aggravated damages - The Saskatchewan Court of Appeal held that although the award was high, it was not so inordinately high as to invite intervention - See paragraphs 202 to 220.

Damage Awards - Topic 2408

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

Damages - Topic 508

Limits of compensatory damages - General - Causes independent of wrongful act - [See Damages - Topic 1016 ].

Damages - Topic 905

Aggravation - Aggravated damages - Claim for - The Saskatchewan Court of Appeal stated that "In principle, aggravated damages are awarded not in addition to, but as part of, an award of general damages. The presence of aggravating factors goes to increase such award, not to provide the foundation for a separate award." - See paragraph 202.

Damages - Topic 1016

Mitigation - In tort - Sexual abuse - In his early teens the plaintiff was subjected to two acts of masturbation by the defendant Starr - The Saskatchewan Court of Appeal held that the trial judge erred in awarding the plaintiff damages for past and future loss of earning capacity - The trial judge should have determined the extent of the loss attributable to Starr's acts by undertaking a retrospective contingency assessment and potential deduction in relation to the plaintiff's alcohol problem having regard, among other possible contributing factors, to his formative and other life experiences - Further, he should have considered the plaintiff's failure to mitigate (refused opportunities to upgrade his education and training and obtain alcohol rehabilitation treatment) and his receipt of social assistance - Further, the trial judge should not have compensated the plaintiff for periods that he was in jail - See paragraphs 221 to 258.

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings - [See Damages - Topic 1016 ].

Damages - Topic 1550.1

General damages - General damages for personal injury - Pre-trial loss of wages or earnings - [See Damages - Topic 1016 ].

Damages - Topic 1556

General damages - General damages for personal injury - Calculation and method of assessment - Contingencies - Deduction for - [See Damages - Topic 1016 ].

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - [See Damage Awards - Topic 489 ].

Damages - Topic 1765

Deductions for payments or assistance by third parties - By statute or government - Social welfare payments - [See Damages - Topic 1016 ].

Interest - Topic 5008

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Entitlement - In 1975 or thereabouts, the plaintiff was subjected to two acts of masturbation by one of the defendants - Section 8 of the Pre-judgment Interest Act stated: "This Act does not apply to a cause of action arising before the day on which this Act comes into force" - The Act came into force on January 1, 1986 - The trial judge awarded the plaintiff prejudgment interest on his damages - The Saskatchewan Court of Appeal overturned the award of prejudgment interest, holding that the discoverability rule did not apply to the term "cause of action" in s. 8 of the Act - See paragraphs 264 to 278.

Interest - Topic 5141

Interest as damages (prejudgment interest) - Torts - Sexual assault - [See Interest - Topic 5008 ].

Master and Servant - Topic 3703

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

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact by a trial judge - The Saskatchewan Court of Appeal discussed the general standards of appellate review with respect to issues of fact, questions of law and questions of "mixed fact and law" - See paragraphs 81 to 102.

Practice - Topic 8800.1

Appeals - General principles - Duty of appellate court regarding findings of mixed law and fact by a trial judge - [See Practice - Topic 8800 ].

Practice - Topic 8800.1

Appeals - General principles - Duty of appellate court regarding findings of mixed law and fact by a trial judge - A defendant in a negligence action appealed a finding of vicarious liability that had been made against it - The Saskatchewan Court of Appeal stated that "This is essentially a question of the application of the doctrine of vicarious liability to the facts of the case as they pertain to this branch of it. The facts, as they emerge from the trial judge's findings and our review of the evidence, are essentially beyond dispute. So, too, is the content of the doctrine of vicarious liability. Hence, what is called for is the evaluation of those facts against the legal standards embodied in the doctrine." - See paragraph 103 - The court held that, applying s. 14 of the Court of Appeal Act, 2000, a correctness standard applied to the finding of vicarious liability - See paragraph 104.

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - [See Practice - Topic 8800 ].

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - The Saskatchewan Court of Appeal stated that "There is a component in the assessment of damages, namely their quantification, which entails the exercise of discretion. This is especially so in respect of the amount of non-pecuniary damages because the amount does not lend itself to calculation, not to the extent the amount of pecuniary damages does. So again 'special weight' is to be given to the trial judge's view ... Only if the trial judge's quantification is 'inordinately high or low' or 'unreasonable' may the Court justly interfere ..." - See paragraph 79.

Practice - Topic 9255

Appeals - Judgments by appeal court - Scope of jurisdiction - [See Courts - Topic 8203 ].

Practice - Topic 9257

Appeals - Judgments by appeal court - Assessment of damages - [See Practice - Topic 8802 ].

Torts - Topic 2530

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

Words and Phrases

Cause of action - The Saskatchewan Court of Appeal held that the discoverability rule did not apply to the phrase "cause of action" as found in s. 8 of the Pre-judgment Interest Act, S.S. 1984-85-86 - See paragraphs 264 to 278.

Cases Noticed:

Farm Credit Corp. v. Valley Beef Producers Co-operative Ltd. et al. (2002), 223 Sask.R. 236; 277 W.A.C. 236 (C.A.), refd to. [para. 10].

Taylor v. University of Saskatchewan (1955), 15 W.W.R.(N.S.) 459 (Sask. C.A.), refd to. [para. 19].

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 19].

Dubé v. Labar, [1986] 1 S.C.R. 649; 68 N.R. 91, refd to. [para. 19].

Annable v. Coventry (1912), 5 D.L.R. 661 (S.C.C.), refd to. [para. 29].

Miller v. Foley & Sons (1921), 59 D.L.R. 664 (Sask. C.A.), refd to. [para. 29].

Monaghan v. Monaghan, [1931] 2 W.W.R. 1 (Sask. C.A.), refd to. [para. 29].

Hallberg v. Canadian National Railway (1955), 16 W.W.R.(N.S.) 538 (Sask. C.A.), refd to. [para. 30].

Schram v. Kearns, [1941] 2 W.W.R. 177 (Sask. C.A.), refd to. [para. 30].

Horseshoe Creek Farms Ltd. v. Sterling Structures Co., Ferguson and Swertz (1982), 15 Sask.R. 57 (C.A.), refd to. [para. 30].

Gray v. Turnbull (1870), L.R. 2 Sc. & Div. 53 (H.L.), refd to. [para. 37].

Bigsby v. Dickinson (1874), 4 Ch. D. 24 (C.A.), refd to. [para. 37].

Grasett v. Carter (1884), 10 S.C.R. 105, refd to. [para. 37].

Coghlan v. Cumberland, [1898] 1 Ch. 704 (C.A.), refd to. [para. 40].

Montgomerie & Co. v. Wallace-James, [1904] A.C. 73 (H.L.), refd to. [para. 42].

Dominion Trust Co. v. New York Life Insurance Co., [1919] A.C. 254 (P.C.), refd to. [para. 43].

Mersey Docks and Harbour Board v. Procter, [1923] A.C. 253 (H.L.), refd to. [para. 45].

Benmax v. Austin Motor Co., [1955] A.C. 370 (H.L.), refd to. [para. 46].

Tanfern Ltd. v. Cameron-MacDonald, [2000] 1 W.L.R. 1311, refd to. [para. 49].

Coventry v. Annable (1911-12), 19 W.L.R. 400 (Sask. S.C. en banc), refd to. [para. 52].

Greene, Swift & Co. v. Lawrence (1912), 2 W.W.R. 932 (S.C.C.), refd to. [para. 53].

Cowie v. Robins and Son (1916), 10 W.W.R. 287 (Sask. S.C. en banc), refd to. [para. 54].

Goddard v. Prime (1916-17), 10 Sask. L.R. 102 (S.C. Sask. en banc), refd to. [para. 55].

Messer v. Messer (1922), 66 D.L.R. 833 (Sask. C.A.), refd to. [para. 57].

Reinhart v. Regina (City), [1944] 4 D.L.R. 568 (Sask. C.A.), refd to. [para. 57].

Kowalski v. Sharpe (1953), 10 W.W.R.(N.S.) 604 (Sask. C.A.), refd to. [para. 57].

Tarasoff v. Zielinsky, [1921] 2 W.W.R. 135 (Sask. C.A.), refd to. [para. 58].

Matthewson et al. v. Thompson et al., [1925] 2 D.L.R. 1211 (Sask. C.A.), refd to. [para. 59].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 66].

Markling (Crooks) v. Ewaniuk et al. (1968), 64 W.W.R.(N.S.) 619 (S.C.C.), refd to. [para. 68].

Kosinski v. Snaith and Dawson Transport Ltd. (1983), 25 Sask.R. 73 (C.A.), refd to. [para. 68].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601 (P.C.), refd to. [para. 79].

Kozack v. Richter et al., [1971] 1 W.W.R. 508 (Sask. C.A.), refd to. [para. 79].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 90].

Board of Education of Long Lake School Division No. 30 v. S., I. and Saskatchewan Government Insurance (1986), 49 Sask.R. 244 (C.A.), refd to. [para. 90].

St-Jean v. Mercier (2002), 282 N.R. 310; 209 D.L.R.(4th) 513 (S.C.C.), refd to. [para. 104].

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, consd. [para. 104].

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

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, consd. [para. 104].

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

Canadian Pacific Railway Co. v. Lockhart, [1942] A.C. 591 (P.C.), refd to. [para. 106].

D.W. v. Canada (Attorney General) and Starr (1999), 187 Sask.R. 21 (Q.B.), refd to. [para. 145].

V.P. v. Canada (Attorney General) and Starr, [2000] 1 W.W.R. 541; 186 Sask.R. 161 (Q.B.), refd to. [para. 159].

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. 196].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 204].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1, refd to. [para. 204].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 204].

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. 204].

J.M.T. v. A.F.D. and J.A.D., [1995] 6 W.W.R. 92; 130 Sask.R. 270 (Q.B.), refd to. [para. 217].

S.P. v. F.K., [1997] 3 W.W.R. 161; 150 Sask.R. 173 (Q.B.), refd to. [para. 217].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 230].

Engel v. Salyn et al., [1993] 1 S.C.R. 306; 147 N.R. 321; 105 Sask.R. 81; 32 W.A.C. 81, refd to. [para. 230].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103, refd to. [para. 231].

Graham et al. v. Rourke (1990), 40 O.A.C. 301; 74 D.L.R.(4th) 1 (C.A.), refd to. [para. 237].

M.B. v. British Columbia (2001), 151 B.C.A.C. 70; 249 W.A.C. 70; 197 D.L.R.(4th) 385 (C.A.), refd to. [para. 237].

State Rail Authority of New South Wales v. Wiegold (1991), 25 N.S.W.L.R. 500 (C.A.), refd to. [para. 241].

Sebastian v. Workers' Compensation Board (Sask.) (1994), 125 Sask.R. 28; 81 W.A.C. 28; 119 D.L.R.(4th) 528 (C.A.), refd to. [para. 241].

M.B. v. British Columbia (2002), 164 B.C.A.C. 247; 268 W.A.C. 247; 211 D.L.R.(4th) 295 (C.A.), refd to. [para. 244].

Bonham-Carter v. Hyde Park Hotel Ltd. (1948), 64 T.L.R. 177 (C.A.), refd to. [para. 247].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 252].

Rieger et al. v. Burgess et al., [1988] 4 W.W.R. 577; 66 Sask.R. 1 (C.A.), refd to. [para. 254].

Parker v. Saskatchewan Hospital Association, [2001] 7 W.W.R. 230; 207 Sask.R. 121; 247 W.A.C. 121 (C.A.), refd to. [para. 254].

AE Realisations (1985) Ltd. v. North Canada Air Ltd. et al. (1993), 113 Sask.R. 12; 52 W.A.C. 12 (C.A.), refd to. [para. 266].

Naeth v. Warburton (1993), 116 Sask.R. 11; 59 W.A.C. 11 (C.A.), refd to. [para. 266].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 266].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 267].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 267].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 268].

Davies et al. v. British Columbia et al. (1999), 121 B.C.A.C. 43; 198 W.A.C. 43; 172 D.L.R.(4th) 1 (C.A.), refd to. [para. 268].

K.L.B. v. British Columbia - see Davies et al. v. British Columbia et al.

Blackwater et al. v. Plint et al., [2001] B.C.T.C. 997; 93 B.C.L.R.(3d) 228 (S.C.), refd to. [para. 277].

W.R.B. v. Plint - see Blackwater et al. v. Plint et al.

Statutes Noticed:

Court of Appeal Act, S.S. 2000, c. 42.1, sect. 7(2)(a) [para. 8]; sect. 12(1) [para. 9]; sect. 13 [para. 8]; sect. 14 [para. 9].

Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2, sect. 6, sect. 8 [para. 264].

Authors and Works Noticed:

Banakas, E.K., Tort Damages and the Decline of Fault Liability: Plato Overruled, But Full Marks to Aristotle!, [1985] Cambridge L.J. 195, p. 197 [para. 240].

Berry, David T.R., Detecting Distortion in Forensic Evaluations with the MMPI-2, generally [para. 187, footnote 1].

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), pp. 159 to 163 [para. 22].

Goodhart, A.L., Appeals on Questions of Fact (1955), 71 L.Q.R. 402, generally [para. 48].

Ogloff, James R.P., The Legal Basis of Forensic Applications of MMPI-2, in Forensic Applications of the MMP1-2 (1995), generally [para. 187, footnote 1].

Pope, Kenneth, et al., The MMPI, MMPI-2 & MMPI-A in Court: A Practical Guide for Expert Witnesses and Attorneys (1993), generally [para. 187, footnote 1].

Raney, W.E., Findings of Fact, [1916] 36 C.L.T. 54, generally [para. 37].

Schuller, Regina A., and Ogloff, James R.P., Introduction to Psychology and Law: Canadian Perspectives (2001), generally [para. 187, footnote 1].

Supreme Court Practice (2001), vol. 1, Parts 52, 52.10, 52.11 [para. 49].

White Book - see Supreme Court Practice.

Counsel:

Thor G.H. Kristiansen and Scott T. Bell, for the appellant;

E.F. Anthony Merchant, Q.C., and Michael D. Nolin, for the respondent.

This appeal was heard on December 14, 2001, by Cameron, Vancise and Lane, JJ.A., of the Saskatchewan Court of Appeal. Cameron, J.A., delivered the following written reasons for the court on December 2, 2002.