Rich v. Bromley Estate et al., (2011) 305 Nfld. & P.E.I.R. 69 (NLTD(G))

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: January 31, 2011
• Jurisdiction: Newfoundland and Labrador
• Citations: (2011), 305 Nfld. & P.E.I.R. 69 (NLTD(G))

Rich v. Bromley Estate (2011), 305 Nfld. & P.E.I.R. 69 (NLTD(G));

    948 A.P.R. 69

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. FE.011

Louis Rich (plaintiff) v. The Estate of Ronald Bromley, as represented by the Registrar of the Supreme Court of Newfoundland and Labrador (first defendant) and Her Majesty the Queen in Right of Newfoundland, who at all material times to this action was represented by the Minister of Social Services (second defendant) and The Roman Catholic Episcopal Corporation of Grand Falls (The Roman Catholic Diocese of Grand Falls) (third defendant)

(200101T4456; 2011 NLTD(G) 16)

Indexed As: Rich v. Bromley Estate et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Adams, J.

January 31, 2011.

Summary:

The plaintiff sued Her Majesty the Queen in Right of Newfoundland and Labrador (the Province) and others for damages for sexual and physical assault by a priest while the plaintiff was a resident at the Whitbourne Boys Home around 1977 when he was 12 or 13 years old. The priest was a volunteer who was permitted to take boys from Whitbourne to his cabin overnight where the assaults were alleged to have occurred. The plaintiff claimed against the Province in negligence and vicarious liability.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the claim, holding that the plaintiff failed to establish that any assault had occurred. If the plaintiff`s claim had not been dismissed on that basis, the court would not have found that the Province was negligent or vicariously liable for the priest`s actions. If the Province had been found liable, the court would have awarded the plaintiff $45,000 in damages, including $15,000 for aggravated damages.

Crown - Topic 1527

Torts by and against Crown - Liability of Crown for acts of servants - When Crown liable - The plaintiff claimed against Her Majesty the Queen in Right of Newfoundland and Labrador (the Province) in negligence for damages for sexual and physical assault by a priest while he was a resident at the Whitbourne Boys Home around 1977 when he was 12 or 13 years old - The priest was a volunteer who had been permitted to take boys to his cabin overnight where the assaults were alleged to have occurred - The plaintiff had been a ward of the state pursuant to the Juveniles Act under the care and supervision of the Director of Child Welfare and the Superintendent of Whitbourne, who was responsible to the Director - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that Whitbourne was a "training school" as defined by the Act - The Province, through the Director and Superintendent, owed a prima facie statutory duty of care to the plaintiff as a delinquent ward of the state - While the duty was high, the Province had not been a guarantor of a ward's safety - Some negligence or breach of duty on the government's part as caregiver had to be shown - The plaintiff had to establish the standard applicable at the time and that the Director or the Superintendent breached that standard - There was no evidence on what the standard was - Nor was there any evidence that the Director, the Superintendent or any other person knew of anything which would have led them to believe that the priest would commit the alleged acts - It was easy to look back with hindsight and the recent history of sexual abuse by clergy and conclude that the government ought to have known of the risk to which they were subjecting the plaintiff to - But absent evidence respecting knowledge of those in power at the time, there was no basis to conclude that there was a foreseeable risk of harm in allowing the plaintiff an overnight pass to visit the priest's cabin in the company of other boys - On that basis, the claim against the Province in negligence had to be dismissed - See paragraphs 49 to 57.

Crown - Topic 1527

Torts by and against Crown - Liability of Crown for acts of servants - When Crown liable - The plaintiff sued Her Majesty the Queen in Right of Newfoundland and Labrador (the Province), asserting that it was vicariously liable for a priest who sexually and physically assaulted him while he was a resident at the Whitbourne Boys Home around 1977 when he was 12 or 13 years old - The priest was a volunteer who was permitted to take boys to his cabin overnight where the assaults were alleged to have occurred - The plaintiff asserted that because of the nature of duty owed to him by the Director of Child Welfare and the Superintendent of Whitbourne and the unprecedented access granted to the priest respecting wards of the state, particularly the plaintiff, together with the Director's and Superintendent's transfer to the priest of their responsibilities for the plaintiff, the Province ought to held vicariously liable for the assaults - The Newfoundland and Labrador Supreme Court, Trial Division (General), rejected the claim - Precedent did not support the imposition of vicarious liability - As for a policy basis, the significant connection test was not met - The priest was a volunteer - He was an independent contractor in relation to the Province - He had not been assigned tasks to perform for Whitbourne - An opportunity was created for the priest to abuse his authority over the plaintiff and sexually assault him - However, that was not sufficient without job-created power to fix vicarious liability - While caring for the plaintiff was Whitbourne's principle aim, sexual assault was not one of its or the Province's aims - While permission to take the plaintiff to the priest's cabin created the opportunity for close physical contact, it did not lead to intimacy (i.e, bathing, tucking into bed, etc.) - While it could be presumed that the priest had control over the plaintiff, it was a transitory, safety related conference of power referable only while the plaintiff was in the priest's care - The priest was not specifically authorized to do anything in relation to the plaintiff - He did not have the authority to carry out any of Whitbourne's substitutional parenting responsibilities - While the plaintiff was vulnerable to the alleged assaults while he was in the priest's care, that was little or nothing more than an extension of the first criteria of opportunity - To the extent that the priest used the freedoms and favours given to the wards at Whitbourne to further his own despicable ends could not be laid at the feet of the Province under the theory of vicarious liability - Further, it was contrary to the policy of fair compensation and deterrence underlying the law of vicarious liability for the plaintiff to be allowed to pursue the province where there was almost no basis on which to ground a claim in vicarious liability when he had declined to pursue the Roman Catholic Episcopal Corporation, which was arguably the priest's real employer - See paragraphs 58 to 87.

Crown - Topic 1563

Torts by and against Crown - Negligence by Crown - Breach of statutory duty - [See first Crown - Topic 1527 ].

Crown - Topic 1701

Torts by and against Crown - Actions against Crown for breach of statutory duty - General - [See first Crown - Topic 1527 ].

Crown - Topic 1712

Torts by and against Crown - Actions against Crown for breach of statutory duty - Remedies - Damages - The plaintiff sued Her Majesty the Queen in Right of Newfoundland and Labrador (the Province) for damages for sexual and physical assault by a priest while the plaintiff was a resident at the Whitbourne Boys Home around 1977 when he was 12 or 13 years old - The plaintiff claimed against the Province in negligence and vicarious liability - The priest was a volunteer who had been permitted to take boys to cabin overnight where the assaults were alleged to have occurred - The plaintiff barely spoke English at the time and had little exposure to white, English culture - There were two separate alleged assaults which occurred within minutes of each other - The second more serious assault, involved masturbation by the priest and ejaculation on the plaintiff's face and slapping him unconscious - There was evidence that the plaintiff had been the victim of a more serious sexual assaults by another priest - The plaintiff was an alcoholic and had a lengthy criminal record - He had trouble forming and maintaining relationships - He sexually assaulted his own daughter and abused his spouses - His troubled childhood started well before his incarceration at Whitbourne - He lost both his parents to alcoholism - His mother died when he was seven - His criminal activity commenced when he was nine years old - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the action - The court provisionally assessed damages, concluding that the appropriate range for cases such as this where there were multiple causes of the problems experienced by the plaintiff and it was difficult to separate the damage caused by the defendant from the damages caused by the other circumstances, which were at least as damaging, if not more so, was between $20,000 and $85,000 - If the court had found the province vicariously liable, it would have awarded the plaintiff $45,000, including $15,000 for aggravated damages - See paragraphs 88 to 118.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - [See Crown - Topic 1712 ].

Damage Awards - Topic 2408

Aggravated damages - Sexual assault (incl. sexual abuse) - [See Crown - Topic 1712 ].

Torts - Topic 2560

Vicarious liability - For independent contractors - What constitutes an independent contractor - [See second Crown - Topic 1527 ].

Torts - Topic 2563

Vicarious liability - For independent contractors - Sexual abuse - [See second Crown - Topic 1527 ].

Torts - Topic 8906

Duty of care - Particular relationships - Control of conduct of others - Care of children - [See first Crown - Topic 1527 ].

Torts - Topic 9159

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Child and family services departments and employees, subcontractors, etc. - [See first Crown - Topic 1527 ].

Cases Noticed:

R. v. T.L.M., [2010] Nfld. & P.E.I.R. Uned. 6; 2010 NLTD 11, refd to. [para. 43].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 43].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 43].

J.W.D. Estate v. Newfoundland and Labrador - see H.H. Estate v. Newfoundland and Labrador.

H.H. Estate v. Newfoundland and Labrador (2010), 298 Nfld. & P.E.I.R. 74; 921 A.P.R. 74; 2010 NLTD 47, refd to. [para. 52].

K.L.B. et al. v. British Columbia et al. (2003), 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 CarswellBC 2405 (S.C.C.), refd to. [para. 53].

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

P.A.B. v. Children's Foundation et al. (1999), 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119; 1999 CarswellBC 1264 (S.C.C.), refd to. [para. 58].

C.S. v. Miller et al. (2002), 306 A.R. 289; 2002 ABQB 152, dist. [para. 62].

Backes v. King, [1992] A.J. No. 1277 (Q.B.), dist. [para. 65].

C.A. et al. v. Critchley et al. (1997), 96 B.C.A.C. 33; 155 W.A.C. 33; 1997 CanLII 4092 (C.A.), dist. [para. 66].

B.M.G. v. Nova Scotia (Attorney General) (2007), 260 N.S.R.(2d) 257; 831 A.P.R. 257; 2007 NSCA 120, dist. [para. 74].

E.D.G. v. Hammer et al. (2003), 310 N.R. 1; 187 B.C.A.C. 193; 307 W.A.C. 193; 2003 CarswellBC 2407 (S.C.C.), refd to. [para. 77].

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. 77].

John Doe v. Bennett et al., [2004] 1 S.C.R. 436; 318 N.R. 146; 236 Nfld. & P.E.I.R. 215; 700 A.P.R. 215, refd to. [para. 80, footnote 2].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24, refd to. [para. 88].

S.Y. v. F.G.C. (1996), 78 B.C.A.C. 209; 128 W.A.C. 209; 1996 CanLII 6597 (C.A.), refd to. [para. 89].

J.R.S. et al. v. Glendinning et al., [2004] O.T.C. 102; 2004 CanLII 5011 (Sup. Ct.), refd to. [para. 89].

T.O. v. J.H.O., [2006] B.C.T.C. 560; 2006 BCSC 560, refd to. [para. 89].

M.L.H. v. R.G.R. et al. (2007), 231 O.A.C. 136; 2007 CarswellOnt 7578 (C.A.), refd to. [para. 90].

M.A. and T.A. v. Canada (Attorney General) et al. (2003), 227 Sask.R. 260; 287 W.A.C. 260; 2003 CarswellSask 29 (C.A.), refd to. [para. 90].

J.P. v. Sinclair et al. (1999), 13 B.C.T.C. 360; 1999 CarswellBC 1207 (S.C.), refd to. [para. 90].

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. 92].

Counsel:

John W. Lavers and Sarah Learmonth, for the plaintiff;

Randolph J. Piercey, Q.C., for the second defendant.

This action was heard at St. John's, NL, by Adams, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on January 31, 2011.