John Doe v. Bennett et al., (2004) 318 N.R. 146 (SCC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.
• Date: 25 March 2004
• Citation: (2004), 318 N.R. 146 (SCC),2004 SCC 17,318 NR 146,700 APR 215,32 CCEL (3d) 1,236 DLR (4th) 577,236 Nfld & PEIR 215,[2004] 1 SCR 436,[2004] SCJ No 17 (QL)
• Court: Supreme Court (Canada)

John Doe v. Bennett (2004), 318 N.R. 146 (SCC)

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[French language version follows English language version]

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Temp. Cite: [2004] N.R. TBEd. MR.060

Roman Catholic Episcopal Corporation of St. George's (appellant) v. John Doe ("a pseudonym") and John Doe ("a pseudonym") (respondents)

John Doe ("a pseudonym") and John Doe ("a pseudonym") (appellants) v. Roman Catholic Episcopal Corporation of St. George's (respondent) and Alphonsus Penney, Raymond Lahey, Roman Catholic Episcopal Corporation of St. John's, James MacDonald, and the Roman Catholic Church (respondents) and Attorney General of Canada and Canadian Conference of Catholic Bishops (intervenors)

(29426; 2004 SCC 17; 2004 CSC 17)

Indexed As: John Doe v. Bennett et al.

Supreme Court of Canada

McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.

March 25, 2004.

Summary:

Thirty six male plaintiffs brought separate actions for damages against the defendants for sexual assaults committed against them between 1961 and 1989 by a Catholic priest (defendant Bennett). All of the boys were 10-16 year old altar boys at the time of the sexual assaults. Bennett, who had pleaded guilty to criminal charges, admitted the sex­ual assaults. The 36 actions were consoli­dated for trial. At issue was whether the former archbishop of the archdiocese of St. John's, the current archbishop of St. John's and the current bishop of the diocese of St. George's were vicariously liable for Ben­nett's torts or negligent for their actions or inaction respecting Bennett's conduct. Also at issue was whether the Roman Catholic Epis­copal Corporations of St. John's and St. George's respectively were vicariously liable or directly liable for Bennett's torts by reason of their roles as ecclesiastical corpor­ations.

The Newfoundland Supreme Court, Trial Di­vi­sion, in a judgment reported (2000), 190 Nfld. & P.E.I.R. 277; 576 A.P.R. 277, held that Bennett was liable for sexual assault. The bishops and Episcopal Corporation of St. George's were vicariously liable for the torts of their employee (Bennett) and also negligent in failing to take steps to stop the sexual abuse once they had knowledge of what was going on. The bishop of St. John's and the Episcopal Corporation of St. John's were not vicariously liable (no employer-employee relationship), but the bishop was negligent in failing to take appropriate steps to report the sexual abuse. The Episcopal Corporation of St. John's was not negligent. The bishops and Episcopal Corporation of St. George's appealed. The plaintiffs cross-appealed.

The Newfoundland and Labrador Court of Ap­peal, Cameron, J.A., dissenting in part but concurring in the result, in a judgment re­ported (2002), 215 Nfld. & P.E.I.R. 310; 644 A.P.R. 310, allowed the appeal in part and dismissed the cross-appeal. None of the bishops were personally liable in negligence or on the basis of vicarious liability. The court, after discussing the applicability of vicarious liability to non-profit charitable organizations, held that the Episcopal Cor­poration of St. George's was not vicariously liable for Bennett's torts. However, the court affirmed St. George's direct liability in neg­ligence. The court affirmed that the Epis­copal Corporation of St. John's was neither directly liable in negligence nor vicariously liable, and that there was no basis to impose liability on the "Roman Catholic Church". St. George's appealed the finding that it was directly liable and argued that the Roman Catholic Church was liable. The plaintiffs cross-appealed, submitting that the bishops, St. John's and the Roman Cath­olic Church were also liable. The cross-appeal was con­ditional in the sense that it need not be considered if St. George's appeal from lia­bil­ity was dismissed.

The Supreme Court of Canada affirmed that St. George's was directly liable for the bishops' negligence in failing to properly direct and discipline Bennett. The court also held that St. George's was vicariously liable for Bennett's conduct. The court declined to rule on whether the Roman Catholic Church was liable, because "the record before us is too weak to permit the court in this case to responsibly embark on the important and dif­ficult question of whether the Roman Catho­lic Church can be held liable in a case such as this". Given that St. George's liabil­ity was affirmed, the court declined to con­sider the issues raised in the cross-appeal.

Master and Servant - Topic 3679

Liability of master for acts of servant - Torts - Acts in course of employment - Sex­ual abuse - A Catholic priest sexually abused boys over a 28 year period - The successive bishops of the Episcopal Cor­poration of St. George's admittedly knew or ought to have known of the abuse and negligently failed to stop the abuse from continuing - It was also admitted that the bishops constituted the corporation sole of St. George's under the relevant legislation and acted on its behalf - However, St. George's denied direct liability on the ground that the corporation sole's activities and powers were confined to holding prop­er­ty and did not extend to the place­ment, direction and discipline of priests - The Supreme Court of Canada, in affirm­ing St. George's direct liability, rejected the sub­mission - The court stated that "the bishop is a corporation capable of suing and being sued 'in all courts' with respect to all matters, and has the power to hold proper­ty and borrow money for all dio­cesan pur­p­­oses. The corporation can fairly be de­scribed as the temporal or secular arm of the bishop. The argument that only the bishop's acts relating to property are acts of the corporation must be rejected. All temporal or secular actions of the bishop are those of the corporation. This includes the direction, control and disci­pline of priests, which are the respon­sibil­ity of the bishop. If the bishop is negligent in the discharge of these duties, the corpor­ation is directly liable. Further­more, this liability remains with the cor­poration sole, as a cont­inuing legal entity, even when the bishop initially responsible moves from the diocese or retires from his position." - See paragraphs 7 to 16.

Master and Servant - Topic 3703

Liability of master for acts of servant - Torts - Wilful acts - Sexual abuse - [See Master and Servant - Topic 3679 ].

Practice - Topic 267

Persons who can sue and be sued - Legal personality - Churches - Thirty six male plaintiffs brought separate actions for dam­ages against the defendants, including the "Roman Catholic Church", for sexual as­saults committed against them between 1961 and 1989 by a Catholic priest (de­fendant Bennett) - The Newfoundland and Labrador Court of Appeal affirmed that the "Roman Catholic Church" was not an en­tity capable of being sued - The Supreme Court of Canada declined to resolve the issue of the Roman Catholic Church's lia­bil­ity on the record before it - The court stated that "the record does not provide the clear picture of the details of the Church's hierarchy or of the relation­ship between the Church and its constituent parts, neces­sary to delineate the boundaries of the in­stitution, the nature of its legal status, and its potential liability. Nor does the record offer much assistance on the proce­dural ques­tions that would need to be answered before the Church, as a global institution, could be found liable for the wrongs com­mitted by Father Bennett in the diocese of St. George's." - See paragraphs 34 to 37.

Torts - Topic 49.40

Negligence - Standard of care - Particular persons and relationships - Charitable or non-profit organizations (incl. churches) - [See Master and Servant - Topic 3679 ].

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - Sexual abuse - A Catholic priest (Ben­nett) sexually abused boys over a 28 year period - The Supreme Court of Canada held that the Episcopal Corporation of St. George's, as the priest's employer, was vi­cariously liable for the abuse - The court stated that "the evidence overwhelmingly satisfies the tests affirmed in P.A.B., G.T.-J. and K.L.B. The relation­ship between the diocesan enterprise and Bennett was suf­fic­iently close. The enter­prise substantially enhanced the risk which led to the wrongs the plaintiff-respondents suffered. It pro­vided Bennett with great power in relation to vulnerable victims and with the oppor­tunity to abuse that power. A strong and direct connection is estab­lished between the conduct of the enter­prise and the wrongs done to the plaintiff-respondents. The majority of the Court of Appeal erred in failing to apply the right test. Had it per­formed the appropriate analysis, it would have found the Roman Catholic Epis­copal Corporation of St. George's vicariously liable for Father Bennett's as­saults on the plaintiff-respon­dents." - See paragraphs 17 to 33.

Torts - Topic 2648

Vicarious liability - Particular persons - Churches - [See Torts - Topic 2530 ].

Torts - Topic 2649

Vicarious liability - Particular persons - Non-profit organizations - The Supreme Court of Canada stated that "the Court of Appeal erred in reading G.T.-J. as suggest­ing that its effect is that non-profit employers should not be held vicariously liable for sexual assaults by their em­ployees." - The court stated that G.T.-J. held that "'fairness' to these non-profit or­ganizations is entirely compatible with vi­carious liability provided that a strong connection is established between the en­ter­prise risk and the sexual assault" - See paragraph 24.

Cases Noticed:

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. 19].

Bazley v. Curry - 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, refd to. [para. 19].

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

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 19].

McDonald v. Mombourquette et al. (1996), 152 N.S.R.(2d) 109; 442 A.P.R. 109 (C.A.), leave to appeal denied [1997] 2 S.C.R. xi; 222 N.R. 80, refd to. [para. 26].

W.K. v. Pornbacher et al., [1997] B.C.T.C. Uned. 050; 32 B.C.L.R.(3d) 360 (S.C.), refd to. [para. 26].

Counsel:

Geoffrey D.E. Adair, Q.C., and Krista Springstead, for the appellant/respondent on cross-appeal;

Gregory B. Stack, for the respondents/ap­pellants on cross-appeal;

Richard S. Rogers, for the respondent/ap­pellant on cross-appeal;

David G.L. Buffett, Q.C., for respondents on cross-appeal, Alphonsus Penney, Raymond Lahey and James MacDonald;

James R. Adams, for the respondent on cross-appeal, Roman Catholic Episcopal Corporation of St. John's;

No one appeared for the respondent on cross-appeal, Roman Catholic Church;

Anne M. Turley, for the intervenor the Attorney General of Canada;

William J. Sammon, for the intervenor the Canadian Conference of Catholic Bishops.

Solicitors of Record:

Adair Morse, Toronto, Ontario, for the appellant/respondent on cross-appeal;

Stack & Associates, St. John's, Newfound­land, for the respondents/appellants on cross-appeal;

Williams, Roebothan, McKay & Marshall, St. John's, Newfoundland, for the re­spondent/appellant on cross-appeal;

Benson Myles, St. John's, Newfoundland, for respondents on cross-appeal, Alphon­sus Penney, Raymond Lahey and James MacDonald;

Harrison Pensa, London, Ontario, for the respondent on cross-appeal, Roman Cath­olic Episcopal Corporation of St. John's;

Attorney General of Canada, Ottawa, Ontario, for the intervenor the Attorney General of Canada;

Barnes, Sammon, Ottawa, Ontario, for the intervenor the Canadian Conference of Catholic Bishops.

This appeal and cross-appeal were heard on January 14, 2004, before McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada.

On March 25, 2004, McLachlin, C.J.C., delivered the following judgment in both official languages for the Supreme Court of Canada.