John Doe v. Bennett et al., (2002) 215 Nfld. & P.E.I.R. 310 (NFCA)

• Judge: Marshall, Steele and Cameron, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: August 23, 2002
• Jurisdiction: Newfoundland and Labrador
• Citations: (2002), 215 Nfld. & P.E.I.R. 310 (NFCA)

John Doe v. Bennett (2002), 215 Nfld. & P.E.I.R. 310 (NFCA);

    644 A.P.R. 310

MLB headnote and full text

Temp. Cite: [2002] Nfld. & P.E.I.R. TBEd. AU.023

Alphonsus Penney (first appellant) and Raymond Lahey (second appellant) and Roman Catholic Episcopal Corporation of St. George's (third appellant) v. John Doe ("a pseudonym") (respondent)

John Doe ("a pseudonym") (appellant by cross-appeal) v. Alphonsus Penney (respondent by cross-appeal) and Raymond Lahey (respondent by cross-appeal) and Roman Catholic Episcopal Corporation of St. George's (respondent by cross-appeal) and Roman Catholic Episcopal Corporation of St. John's (respondent by cross-appeal) and James MacDonald (respondent by cross-appeal) and The Roman Catholic Church (respondent by cross-appeal)

(00/76; 00/77; 2002 NFCA 47)

Indexed As: John Doe v. Bennett et al.

Newfoundland and Labrador

Supreme Court

Court of Appeal

Marshall, Steele and Cameron, JJ.A.

August 23, 2002.

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 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, 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".

Master and Servant - Topic 3679

Liability of master for acts of servant - Torts - Acts in course of employment - Sexual abuse - Thirty six male plaintiffs brought actions for damages against the defendants for sexual assaults committed against them between 1961 and 1989 by a Catholic priest (Bennett) - All of the boys were 10-16 year old altar boys at the time of the sexual assaults - Bennett, who abused the authority given to him as a priest, admitted the sexual assaults - At issue was whether the former and current bishops of the diocese of St. John's and the diocese of St. George's (and their respective episcopal corporations) were vicariously liable for Bennett's torts or negligent for their actions or inaction respecting Bennett's conduct - The bishops had knowledge of the sexual abuse, yet did nothing to stop it, knowing that it would continue in the future, which it did - The trial judge held that 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 Newfoundland and Labrador Court of Appeal held that 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, St. George's direct liabil­ity in negligence was affirmed - The court affirmed that the Episcopal Corporation of St. John's was neither directly liable in negligence nor vicariously liable.

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 - See para­graphs 91 to 95.

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - Sexual abuse - [See Master and Servant - Topic 3679 ].

Torts - Topic 2649

Vicarious liability - Particular persons - Nonprofit organizations - [See Master and Servant - Topic 3679 ].

Torts - Topic 2649

Vicarious liability - Particular persons - Nonprofit organizations - The Newfound­land and Labrador Court of Appeal dis­cussed the undesirability of applying the doctrine of vicarious liability to non-profit charitable organizations - The court stated, inter alia, that "there is valid policy justifi­cation for rejecting the attribution of vicar­ious liability to non-profit charitable insti­tutions for acts clearly unconnected with and inimical to the purposes of their exist­ence, when committed by those entrusted with the furtherance of their benevolent objectives. This does not mean that institu­tions such as the Roman Catholic Episco­pal Corporation of St. George's should have absolute immunity from liability, however. The foregoing policy reason for immunity from vicarious liability pre-supposes absence of knowledge of the tortious conduct on the part of those charged with the direction of the institution or organization." - See paragraph 53.

Cases Noticed:

London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, addendum 147 N.R. 336; 21 B.C.A.C. 159; 37 W.A.C. 159, refd to. [para. 18].

London Drugs Ltd. v. Kuehne & Nagel International Ltd. - see London Drugs Ltd. v. Brassart and Vanwinkel.

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. [paras. 18, 78].

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

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12, refd to. [para. 18].

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. [paras. 42, 101].

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

McDonald v. Mombourquette et al. (1996), 152 N.S.R.(2d) 109; 442 A.P.R. 109 (C.A.), refd to. [paras. 47, 158].

W.K. v. Pornbacher et al., [1997] B.C.T.C. Uned. 50; 32 B.C.L.R.(3d) 360 (S.C.), disagreed with [para. 93].

Indian Residential Schools, Re (2001), 286 A.R. 307; 253 W.A.C. 307; 204 D.L.R.(4th) 80 (C.A.), refd to. [para. 93].

Swales et al. v. Glendinning et al., [2000] O.T.C. 743; 191 D.L.R.(4th) 750 (Sup. Ct.), refd to. [para. 94].

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. 101].

Montreal (City) v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161 (P.C.), refd to. [para. 102].

F.S.M. v. Clarke et al., [1999] 11 W.W.R. 301; 20 B.C.T.C. 161 (S.C.), refd to. [para. 103].

Blackwater et al. v. Plint et al., [1998] B.C.T.C. Uned. 755; 161 D.L.R.(4th) 538 (S.C.), refd to. [para. 104].

Crouch v. Queensland Commissioner for Railways (1985), 159 C.L.R. 22 (Aust. H.C.), refd to. [para. 111].

Communities Economic Development Fund v. Canadian Pickles Corp. et al., [1991] 3 S.C.R. 388; 131 N.R. 81; 76 Man.R.(2d) 1; 10 W.A.C. 1; 85 D.L.R.(4th) 88, refd to. [para. 115].

Sun Life Assurance Co. of Canada v. Sisters Adorers of the Precious Blood et al., [1942] O.R. 708 (C.A.), refd to. [para. 115].

Q. v. Minto Management Ltd. (1985), 15 D.L.R.(4th) 581 (Ont. H.C.), affd. (1986), 34 D.L.R.(4th) 767 (Ont. C.A.), refd to. [para. 128].

Taff Vale Railway Co. v. Amalgamated Society of Railway Servants, [1901] A.C. 426 (H.L.), refd to. [para. 129].

S.T. v. North Yorkshire County Council, [1999] L.G.R. 584; [1999] I.R.L.R. 98 (C.A.), refd to. [para. 156, footnote 11].

Lister et al. v. Hesley Hall Ltd., [2001] 2 All E.R. 769; 270 N.R. 203 (H.L.), refd to. [para. 156, footnote 11].

K.G. v. B.W. et al., [2000] O.T.C. 416 (Sup. Ct.), refd to. [para. 164].

S.G.H. v. Gorsline et al., [2001] 6 W.W.R. 132; 285 A.R. 248 (Q.B.), refd to. [para. 165].

Boudreau v. Jacob et al. (1998), 204 N.B.R.(2d) 254; 520 A.P.R. 254; 166 D.L.R.(4th) 125 (C.A.), refd to. [para. 166].

K.S. et al. v. McLean et al., [1999] O.T.C. Uned. C26 (Gen. Div.), refd to. [para. 167].

Leblanc v. Canada (Attorney General) et al. (1999), 14 B.C.T.C. 179; 43 C.C.E.L.(2d) 140 (S.C.), refd to. [para. 167].

D.W. v. Canada (Attorney General) and Starr (1999), 187 Sask.R. 21 (Q.B.), refd to. [para. 168].

V.P. v. Canada (Attorney General) and Starr, [2000] 1 W.W.R. 541; 186 Sask.R. 161 (Q.B.), refd to. [para. 168].

E.B. v. Order of the Oblates of Mary Immaculate (B.C.) et al., [2001] B.C.T.C. 1783 (S.C.), refd to. [para. 169].

Destefano v. Grabrian (1988), 763 P.2d 275 (Colo.), refd to. [para. 170].

Tichenor v. Roman Catholic Church of the Archdiocese of New Orleans (1994), 32 F.3d 953 (5th Cir., C.A.), refd to. [para. 170].

Milla v. Roman Catholic Archbishop of Los Angeles et al. (1986), 232 Cal. Rptr. 685 (C.A. Cal.), refd to. [para. 170].

Jones et al. v. Trane et al. (1992), 591 N.Y.S.2d 927 (Sup. Ct. N.Y.), refd to. [para. 170].

Byrd et al. v. Faber et al. (1991), 565 N.E.2d 584 (Sup. Ct. Ohio), refd to. [para. 170].

Christian Brothers of Ireland in Canada, Re (2000), 132 O.A.C. 271; 47 O.R.(3d) 674 (C.A.), refd to. [para. 175].

Justice v. Cairnie Estate et al. (1993), 88 Man.R.(2d) 43; 51 W.A.C. 43; 105 D.L.R.(4th) 501 (C.A.), refd to. [para. 188].

R.A. v. Children's Foundation (1997), 93 B.C.A.C. 171; 151 W.A.C. 171 (C.A.), refd to. [para. 205].

J.P. v. Sinclair et al. (1997), 93 B.C.A.C. 175; 151 W.A.C. 175; 148 D.L.R.(4th) 472 (C.A.), affing. [1995] B.C.J. No. 2798 (S.C.), refd to. [paras. 205, 206].

B.F. v. Board of Education of Saskatchewan Rivers School Division No. 119 et al. (2000), 199 Sask.R. 192; 232 W.A.C. 192; 192 D.L.R.(4th) 706 (C.A.), refd to. [para. 207].

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. 211].

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. 211].

Statutes Noticed:

Limitations Act, S.N. 1995, c. L-16.1, sect. 8(2), sect. 8(3), sect. 24 [para. 202].

Rules of Court (Nfld.), Supreme Court Rules, rule 57.[15807(1) [para. 189].

Authors and Works Noticed:

Atiyah, P.S., Vicarious Liability in the Law of Torts (1967), p. 12 [para. 21].

Dane, Perry, The Corporation Sole and the Encounter of Law and Church, in Sacred Companies: Organizational Aspects of Religion and Religious Aspects of Or­ganizations (1998), pp. 55 to 57 [para. 110].

Demerath, Hall and Schmitt, Sacred Com­panies: Organizational Aspects of Relig­ion and Religious Aspects of Organiz­ations (1998), pp. 55 to 57 [para. 110].

Fleming, John G., The Law of Torts (8th Ed. 1992), p. 378 [para. 179].

Gower, L.C.B., The Principles of Modern Company Law (1954), p. 62 [para. 2].

Klar, Linden, Cherniak and Kryworuk, Remedies in Tort, c. 28, § 117 [para. 116].

Laski, Harold J., The Basis of Vicarious Liability (1916), 26 Yale L.J. 105, pp. 107, 108 [para. 19].

McGuinness, Kevin Patrick, The Law and Practice of Canadian Business Corpor­ations (1999), pp. 9 to 11 [para. 108].

Palmer's Company Law (24th Ed. 1987), § 92-19 [para. 109].

Russell, Dawn, Paedophilia: The Criminal Responsibility of Canada's Churches (1992), 15 Dal. L.J. 380, p. 396 [para. 184].

Salmond and Heuston, The Law of Torts (19th Ed. 1987), p. 521 [para. 140].

Salmond and Heuston, The Law of Torts (20th Ed. 1992), p. 422 [para. 116].

Seavey, Warren Abner, Speculations as to "Respondeat Superior", [1934] Harv. Legal Essays 433, generally [para. 18].

Williams, Glanville, Vicarious Liability and the Master's Indemnity (1957), 20 Mod. L. Rev. 220, generally [para. 18].

Counsel:

David G.L. Buffett, for the first and sec­ond appellants and James MacDonald;

David F. Hurley, for the third appellant and the Roman Catholic Episcopal Cor­poration of St. John's;

Gregory B. Stack, for John Doe save one;

Richard S. Rogers, for the remaining John Doe.

This appeal and cross-appeal were heard on March 21-23, 2001, before Marshall, Steele and Cameron, JJ.A., of the Newfoundland and Labrador Court of Appeal.

On August 23, 2002, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Marshall, J.A. (Steele, J.A., concurring) - see paragraphs 1 to 71;

Cameron, J.A., dissenting in part but concurring in the result - see para­graphs 72 to 213.