H.L. v. Canada (Attorney General) et al., (2001) 208 Sask.R. 183 (QB)

• Judge: Klebuc, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 10, 2001
• Jurisdiction: Saskatchewan
• Citations: (2001), 208 Sask.R. 183 (QB);2001 SKQB 233

H.L. v. Can. (A.G.) (2001), 208 Sask.R. 183 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. MY.056

H.L. (plaintiff) v. Attorney General of Canada and William Starr (defendants)

(1997 Q.B.G. No. 2820; 2001 SKQB 233)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Klebuc, J.

May 10, 2001.

Summary:

The plaintiff claimed that he was sexually assaulted on three occasions 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 allowed the plaintiff's action and held that Canada was vicariously liable for Starr's actions. The court awarded the plaintiff $60,000 general damages, $20,000 aggravated damages, $117,337.09 for loss of past income earning capacity and $179,190 for loss of future earning capacity. The court awarded $20,000 punitive damages against Starr only.

Crown - Topic 1527

Torts by and against Crown - Liability of Crown for acts of servants - When Crown liable - The plaintiff claimed that he was sexually assaulted on three occasions by the defendant Starr, while a member of a boxing club operated by the defendant Canada and administered by Starr on its behalf - He alleged that Canada was vicariously liable for Starr's misconduct - The Saskatchewan Court of Queen's Bench held that Canada was vicariously liable - See paragraphs 30 to 51.

Crown - Topic 1527

Torts by and against Crown - Liability of Crown for acts of servants - When Crown liable - The Saskatchewan Court of Queen's Bench found that the plaintiff was sexually assaulted on three occasions by Starr, while a member of a boxing club operated by Canada and administered by Starr on its behalf - The court stated that, for the purposes of this case, a claim for punitive damages against an employer need not be based on an "actionable wrong" of the employer, provided that a significant degree of complicity or blameworthiness on its part existed - The court awarded punitive damages of $20,000, against Starr only - See paragraphs 72 to 78.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - [See first Damage Awards - Topic 627 ].

Damage Awards - Topic 492.1

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

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The plaintiff was sexually assaulted by Starr, while a member of a boxing club operated by Canada and administered by Starr on its behalf - There were three incidents: 1) while replacing equipment in the storage room, Starr asked the plaintiff to masturbate him and the plaintiff ran away; 2) also in the storage room, Starr demanded that the plaintiff manually stimulate his penis and the plaintiff complied out of fear; and 3) in Starr's office, Starr pulled down the plaintiff's and his own pants, manually stimulated the plaintiff's penis and required the plaintiff to manually stimulate his penis - The plaintiff sued Starr and Canada - The Saskatchewan Court of Queen's Bench awarded the plaintiff $60,000 general damages, $20,000 aggravated damages, $117,337.09 for loss of past income earning capacity and $179,190 for loss of future earning capacity - Punitive damages of $20,000 were awarded against Starr only - See paragraphs 54 to 80.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The plaintiff was sexually assaulted on three occasions by Starr, while a member of a boxing club operated by Canada and administered by Starr on its behalf - The Saskatchewan Court of Queen's Bench 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.) - See paragraphs 54 to 62.

Damage Awards - Topic 2013

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

Damage Awards - Topic 2408

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

Damages - Topic 1332

Exemplary or punitive damages - Vicarious liability - [See second Crown - Topic 1527 ].

Damages - Topic 1550

General damages - General damages for personal injury - Prospective loss of wages or earnings (incl. formula) - The Saskatchewan Court of Queen's Bench stated that "Fundamentally, the process [for calculating loss of future earning capacity] involves calculating the present value of future employment income the plaintiff would have earned but for the defendant's negligence. To make the requisite calculations, the following items must be identified: (1) the plaintiff's life expectancy; (2) the length of the plaintiff's work life (usually aged 65); (3) general positive and negative contingency factors; (4) specific positive and negative contingency factors for the plaintiff; (5) a discount multiplier; and (6) a projection of what the plaintiff would have earned but for the defendant's negligence." - See paragraph 70.

Damages - Topic 1556

General damages - General damages for personal injury - Calculation and method of assessment - Contingencies - Deduction for - The plaintiff was sexually assaulted by Starr, while a member of a boxing club operated by Canada and administered by Starr on its behalf - Subsequently, he worked sporadically in the agricultural and construction industries and did part-time "piece work" as a motor vehicle mechanic - No evidence was led respecting contingency factors - The Saskatchewan Court of Queen's Bench applied a 4% general negative contingency factor for construction workers, as approved in an earlier case - The court applied a 20% specific negative contingency factor, of which 15% represented the plaintiff's vulnerability to employment loss due to his minimal education and the consequences of his exposure to a dysfunctional family, and 5% represented the potential negative effects of a back injury suffered in a motor vehicle accident - See paragraph 70.

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - The plaintiff was sexually assaulted on three occasions by Starr, while a member of a boxing club operated by Canada and administered by Starr on its behalf - The Saskatchewan Court of Queen's Bench 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 - See paragraph 71.

Master and Servant - Topic 3703

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

Torts - Topic 62

Negligence - Causation - Intervening causes (novus actus interveniens) - The plaintiff alleged that he was sexually assaulted on three occasions by the defendant Starr, while a member of a boxing club operated by the defendant Canada and administered by Starr on its behalf - He sued Starr and Canada - Canada disputed the causal relationship between the plaintiff's problems and Starr's alleged assaults, submitting that a causal relationship also existed between his problems and abuse inflicted on him by his mother's partner and his dysfunctional family - The Saskatchewan Court of Queen's Bench held that the abuse by Starr was such an extraordinary event that it constituted a novus actus interveniens which severed any chain of causation that might have existed between the other causes and the damages ultimately experienced by the plaintiff - See paragraphs 16 to 29.

Torts - Topic 2530

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

Cases Noticed:

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97; 14 Alta.L.R.(3d) 1; 25 C.R.(4th) 137, refd to. [para. 11].

Continental Insurance Co. v. Dalton Cartage Co. et al., [1982] 1 S.C.R. 164; 40 N.R. 135; 25 C.P.C. 72; 131 D.L.R.(3d) 559, refd to. [para. 15].

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; 140 D.L.R.(4th) 235; 31 C.C.L.T.(2d) 113; [1997] 1 W.W.R. 97, refd to. [para. 21].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 21].

Board of Education of Assiniboine South School Division No. 3. and Hoffer v. Greater Winnipeg Gas Co., [1971] 4 W.W.R. 746 (Man. C.A.), affd. [1973] 6 W.W.R. 765 (S.C.C.), refd to. [para. 21].

Kozak v. Funk; Kozak v. Nutter (1997), 158 Sask.R. 283 (C.A.), refd to. [para. 21].

Justice v. Cairnie Estate, [1999] 11 W.W.R. 82; 136 Man.R.(2d) 84 (Q.B.), refd to. [para. 21].

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; 174 D.L.R.(4th) 45, folld. [para. 30].

Jacobi 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; 174 D.L.R.(4th) 71, dist. [para. 30].

V.P. v. Canada (Attorney General), [2000] 1 W.W.R. 541; 186 Sask.R. 161 (Q.B.), refd to. [para. 36].

D.W. v. Canada (Attorney General) and Starr (1999), 187 Sask.R. 21 (Q.B.), refd to. [para. 36].

F.S.M. v. Clarke et al., [1999] 11 W.W.R. 301; 20 B.C.T.C. 161 (S.C.), refd to. [para. 45].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577; 83 D.L.R.(3d) 452; 3 C.C.L.T. 225, appld. [para. 53].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361; [1982] 1 W.W.R. 433; 129 D.L.R.(3d) 263, appld. [para. 53].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257, appld. [para. 53].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1; 92 D.L.R.(4th) 449; [1992] 4 W.W.R. 577; 12 C.C.L.T.(2d) 1; 68 B.C.L.R.(2d) 29, appld. [para. 53].

Joubert v. Rosetown (Town) and Sled (1986), 50 Sask.R. 41 (Q.B.), affd. (1987), 60 Sask.R. 200 (C.A.), appld. [para. 53].

Kozak v. Funk; Kozak v. Nutter, [1996] 1 W.W.R. 79; 135 Sask.R. 81 (Q.B.), revd. in part [1998] 5 W.W.R. 232; 158 Sask.R. 283; 153 W.A.C. 283 (C.A.), appld. [para. 53].

S.P. v. F.K., [1997] 3 W.W.R. 161; 150 Sask.R. 173 (Q.B.), appld. [para. 53].

J.C. v. R.K., [1995] 8 W.W.R. 570; 133 Sask.R. 65 (Q.B.), refd to. [para. 56].

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. 56].

Peeters v. Canada, [1994] 1 F.C. 562; 163 N.R. 209; 108 D.L.R.(4th) 471 (F.C.A.), refd to. [para. 63].

Daum v. Schroeder et al., [1996] 8 W.W.R. 432; 146 Sask.R. 142; 50 C.P.C.(3d) 367 (Q.B.), refd to. [para. 67].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 72].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321; 58 D.L.R.(4th) 193, refd to. [para. 72].

Lauscher v. Berryere (Bankrupt) et al., [1999] 8 W.W.R. 476; 177 Sask.R. 219; 199 W.A.C. 219; 172 D.L.R.(4th) 439 (C.A.), refd to. [para. 72].

Roose v. Hollett et al. (1996), 154 N.S.R.(2d) 161; 452 A.P.R. 161; 139 D.L.R.(4th) 260 (C.A.), refd to. [para. 74].

R. v. Cairns (1960), 128 C.C.C. 188 (B.C.C.A.), refd to. [para. 77].

R. v. Bildson, [1966] 1 O.R. 787 (H.C.), refd to. [para. 77].

R. v. F., [1969] 2 C.C.C. 4 (Ont. H.C.), refd to. [para. 77].

R. v. Pepin (1974), 20 C.C.C.(2d) 531 (Que. S.C.), refd to. [para. 77].

Authors and Works Noticed:

American Law Institute, Restatement of the Law (Second) Torts (2nd Ed.) (1965), sect. 13, sect. 21 [para. 10].

American Law Institute, Restatement of the Law (Second) Torts (2nd Ed.) (1979), sect. (b), sect. (c) [para. 75].

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 96 [para. 55]; 749 to 753; 776 to 808 [para. 21].

Linden, Allen M., Canadian Tort Law (6th Ed. 1997), p. 45 [para. 10].

Neeb, James W.W., and Harper, Shelly J., Civil Action for Childhood Sexual Abuse (1994), generally [para. 50].

Salmond and Heuston, R.F.V., The Law of Torts (21st Ed. 1996), p. 443 [para. 30].

Counsel:

E.F. Anthony Merchant, Q.C., Michael R. Mantyka and Michael D. Nolan, for the plaintiff;

Thor G.H. Kristiansen, Scott T. Bell and Stephen A. McLachlin, for the defendants.

This action was heard by Klebuc, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on May 10, 2001.