M.A. and T.A. v. Canada (Attorney General) et al., (2001) 212 Sask.R. 241 (QB)

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 07, 2001
• Jurisdiction: Saskatchewan
• Citations: (2001), 212 Sask.R. 241 (QB);2001 SKQB 504

M.A. v. Can. (A.G.) (2001), 212 Sask.R. 241 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. NO.023

M.A. and T.A. (plaintiffs) v. Attorney General of Canada and Melvin McNab (defendants) and Gordon First Nation (third party)

(1997 Q.B.G. Nos. 3180, 3184; 2001 SKQB 504)

Indexed As: M.A. and T.A. v. Canada (Attorney General) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barclay, J.

November 7, 2001.

Summary:

Two female aboriginal high school students resided in a federally operated residence. They were allegedly sexually assaulted by McNab, a Head Child Care Worker at the residence (federal employee). The students sued for damages for emotional injury and financial losses resulting from being sexually abused. The federal Crown conceded that if McNab were found liable for sexual assault, the federal government would be vicariously liable for compensatory damages.

The Saskatchewan Court of Queen's Bench allowed the action. McNab was liable in damages for sexually assaulting the students. The court awarded each student $30,000 general damages for nonpecuniary loss, $15,000 aggravated damages and $15,000 punitive damages. The federal Crown was vicariously liable for the compensatory damages, but not the punitive damages.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault - The Saskatchewan Court of Queen's Bench held that damages for sexual assault should be based on the gravity of the damage caused to the complainant, not on the severity of the sexual assault - See paragraphs 86 to 87.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault - Two female aboriginal high school students were sexually abused by the Head Child Care Worker in the federally operated residence they lived in - The sexual abuse consisted of kissing, inappropriate fondling over the clothes, sitting on the Worker's lap and the Worker rubbing up against their bodies - The now 27 and 30 year old students were sisters - Both suffered emotional damage - The Saskatchewan Court of Queen's Bench awarded each student $30,000 general damages for nonpecuniary loss, $15,000 aggravated damages for the humiliation and indignity they suffered and $15,000 punitive damages - Although the federal Crown was vicariously liable for the compensatory damages, there was no governmental complicity or blameworthiness justifying liability for punitive damages on the part of the federal Crown - See paragraphs 85 to 95, 109 to 124, 125 to 151.

Damage Awards - Topic 2013

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

Damage Awards - Topic 2408

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

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (Thin skull or crumbling skull rule) - The Saskatchewan Court of Queen's Bench quoted the following explanation of the "thin skull" and "crumbling skull" rules as stated by the Supreme Court of Canada: "the 'crumbling skull' doctrine is an awkward label for a fairly simple idea. It is named after the well-known 'thin skull' rule, which makes the tortfeasor liable for the plaintiff's injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff's losses are more dramatic than they would be for the average person. The so-called 'crumbling skull' rule simply recognizes that the pre-existing condition was inherent in the plaintiff's 'original position'. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway" - See paragraph 100.

Damages - Topic 1332.1

Exemplary or punitive damages - Liability of Crown - [See second Damage Awards - Topic 627 ].

Evidence - Topic 1257

Relevant facts, relevance and materiality - Similar acts - To prove course of conduct - Two female high school students residing in a residence where the defendant worked alleged that he sexually assaulted them - The Saskatchewan Court of Queen's Bench admitted similar fact evidence by two other students - The evidence was logically relevant to matters in issue, particularly credibility - The evidence demonstrated sufficient common features to establish a pattern of behaviour by the defendant - The admission of the evidence would not be prejudicial or unfair to the defendant, as the students had given proper notice of their intention to introduce similar fact evidence - See paragraphs 63 to 67.

Evidence - Topic 7157

Opinion evidence - Prohibited opinions - Re credibility of witnesses - The critical issue in an action for damages for sexual assault was the credibility of the two complainants and the alleged perpetrator - An expert witness testified concerning the credibility of the complainants - The Saskatchewan Court of Queen's Bench discussed the problem of drawing an appropriate line between an acceptable expression of expert opinion and an unacceptable premature judgment on credibility which usurped the role of the trier of fact - Experts are permitted to testify that psychological and physical conditions were consistent with sexual abuse, even though such an opinion indirectly supported the credibility of the complainant - However, experts could not give evidence directly confirming a complainant's credibility (i.e., that the expert was of the opinion that the complainant was being truthful) - See paragraphs 40 to 54.

Cases Noticed:

H.L. v. Canada (Attorney General) et al., [2001] 7 W.W.R. 722; 208 Sask.R. 183 (Q.B.), refd to. [para. 6].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481, refd to. [para. 42].

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; 89 C.C.C.(3d) 193; 29 C.R.(4th) 113; 23 W.C.B.(2d) 211, refd to. [para. 43].

R. v. G.B. et al. (No. 1) (1988), 65 Sask.R. 134 (C.A.), refd to. [para. 44].

M.B. v. British Columbia, [2000] B.C.J. No. 638 (S.C.), refd to. [para. 45].

Phillips v. Canada (Attorney General) et al., [2001] B.C.T.C. 255 (S.C.), refd to. [para. 47].

R. v. Jmieff (W.A.) (1994), 51 B.C.A.C. 213; 84 W.A.C. 213; 94 C.C.C.(3d) 157 (C.A.), refd to. [para. 48].

R. v. Llorenz (H.G.) (2000), 132 O.A.C. 201; 35 C.R.(5th) 70 (C.A.), refd to. [para. 49].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81: 55 C.C.C.(3d) 1; 76 C.R.(3d) 1; [1990] 3 W.W.R. 385; 73 Alta. L.R.(2d) 1, refd to. [para. 64].

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, refd to. [para. 85].

J.C. v. R.K., [1995] 8 W.W.R. 570; 133 Sask.R. 65 (Q.B.), refd to. [para. 87].

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. 89].

S.P. v. F.K. (1996), 150 Sask.R. 173 (Q.B.), refd to. [para. 89].

V.P. v. Canada (Attorney General) and Starr (1999), 186 Sask.R. 161 (Q.B.), refd to. [para. 89].

D.W. v. Canada (Attorney General) and Starr (1999), 187 Sask.R. 21 (Q.B.), refd to. [para. 92].

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, refd to. [para. 98].

W.R.B. v. Plint, [2001] B.C.J. No. 1446 (S.C.), refd to. [para. 102].

M.B. v. British Columbia et al., [2000] B.C.T.C. 305 (S.C.), affd. (2001), 151 B.C.A.C. 70; 249 W.A.C. 70 (C.A.), refd to. [para. 104].

T.M.B. v. R.R., [2000] B.C.T.C. 493 (S.C.), refd to. [para. 105].

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. 126].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321; 58 D.L.R.(4th) 193; [1989] 4 W.W.R. 218; 36 B.C.L.R.(2d) 273; 90 C.L.L.C. 14,035; 25 C.C.E.L. 81, refd to. [para. 126].

Lauscher v. Berryere (Bankrupt) et al. (1999), 177 Sask.R. 219; 199 W.A.C. 219 (C.A.), refd to. [para. 127].

Peeters v. Canada, [1994] 1 F.C. 562; 163 N.R. 209; 108 D.L.R.(4th) 471 (F.C.A.), refd to. [para. 128].

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. 131].

W.K. v. Pornbacher et al., [1997] B.C.T.C. Uned. 50; [1998] 3 W.W.R. 149 (S.C.), refd to. [para. 136].

67122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2000), 183 D.L.R.(4th) 488 (C.A.), refd to. [para. 137].

C.A. et al. v. Critchley et al. (1998), 113 B.C.A.C. 248; 184 W.A.C. 248; 166 D.L.R.(4th) 475 (C.A.), refd to. [para. 138].

S.G.H. v. Gorsline et al., [2001] 6 W.W.R. 132; 285 A.R. 248 (Q.B.), refd to. [para. 139].

Authors and Works Noticed:

Paciocco and Stuesser, The Law of Evidence (2nd Ed. 1999), p. 131 [para. 41].

Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd Ed. 1999), pp. 594, 595 [para. 65].

Waddams, Stephen M., The Law of Damages (3rd Ed. 1997), pp. 506 to 508, paras. 11.420 [para. 134].

Waddams, Stephen M., The Law of Damages (2000 Looseleaf Ed.) (Release 9) para. 11.425 [para. 140].

Counsel:

E.F. Anthony Merchant, Q.C., Patrick G. Alberts and Michael D. Nolin, for the plaintiffs;

Michael J. Brannen, Sheila Urzada and Scott T. Bell, for the Attorney General of Canada;

John P. Kwok, for Melvin McNab.

This action was heard before Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on November 7, 2001.