M.A. and T.A. v. Canada (Attorney General) et al., (2003) 227 Sask.R. 260 (CA)

• Judge: Sherstobitoff, Lane and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 22, 2003
• Jurisdiction: Saskatchewan
• Citations: (2003), 227 Sask.R. 260 (CA);2003 SKCA 2

M.A. v. Can. (A.G.) (2003), 227 Sask.R. 260 (CA);

    287 W.A.C. 260

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. JA.077

Attorney General of Canada (defendant/appellant) v. M.A. and T.A. (plaintiffs/respondents) and Melvin McNab (defendant/non-party) and Gordon First Nation (third party/non-party)

(No. 449; 2003 SKCA 2)

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

Saskatchewan Court of Appeal

Sherstobitoff, Lane and Jackson, JJ.A.

January 22, 2003.

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, in a judgment reported 212 Sask.R. 241, allowed the action. McNab was liable in damages for sexually assaulting the students. The court awarded each student, as against McNab, $30,000 general damages for nonpecuniary loss, $15,000 aggravated damages and $15,000 punitive damages. The federal Crown was vicariously liable for the general and aggravated damages, but not the punitive damages. The federal Crown appealed, submitting that the $30,000 general damage award was too high, aggravated damages were not warranted and, in any event, the Crown should not be vicariously liable for aggravated damages.

The Saskatchewan Court of Appeal allowed the appeal. General damages were inordinately high and were reduced from $30,000 to $20,000. Aggravated damages were not warranted.

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 trial judge awarded each student $30,000 general damages and $15,000 aggravated damages for the humiliation and indignity they suffered - The Crown appealed - The Saskatchewan Court of Appeal held that the $30,000 general damage award was inordinately high and reduced it to $20,000 - The trial judge failed to consider the detrimental effect of negative events in the students' lives (including other sexual abuse) both before and after they were abused by the Worker - The abuse was less serious than other reported cases (sexual touching over clothing), was limited in time, no physical force or threats were used and the abuse of one student was limited to a single incident - The court set aside the award for aggravated damages against the Crown as being unwarranted.

Damage Awards - Topic 2408

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

Cases Noticed:

H.L. v. Canada (Attorney General) et al. (2002), 227 Sask.R. 165; 287 W.A.C. 165 (C.A.), refd to. [para. 20].

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. 22].

M.B. v. British Columbia et al., [2001] 5 W.W.R. 6; 151 B.C.A.C. 70; 249 W.A.C. 70 (C.A.), refd to. [para. 27].

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. 27].

J.C. v. R.K. (1995), 133 Sask.R. 65 (Q.B.), refd to. [para. 31].

J.M.T. v. A.F.D. and J.A.D. (1995), 130 Sask.R. 270 (Q.B.), refd to. [para. 31].

S.P. v. F.K. (1996), 150 Sask.R. 173 (Q.B.), refd to. [para. 31].

V.P. v. Canada (Attorney General) and Starr (1999), 186 Sask.R. 161 (Q.B.), refd to. [para. 31].

H.L. v. Canada (Attorney General) et al., [2001] 7 W.W.R. 722; 208 Sask.R. 103 (Q.B.), refd to. [para. 31].

Statutes Noticed:

Court of Appeal Act, S.S. 2000, c. 42.1, sect. 12(1), sect. 12(2), sect. 13, sect. 14 [para. 19].

Counsel:

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

John Kwok, for the appellant McNab (not participating);

E.F.A. Merchant, Q.C., and Patrick G. Alberts, for the respondents.

This appeal was heard on June 20, 2002, before Sherstobitoff, Lane and Jackson, JJ.A., of the Saskatchewan Court of Appeal.

On January 22, 2003, Sherstobitoff, J.A., delivered the following judgment for the Court of Appeal.