S.G.H. v. Gorsline et al., (2001) 285 A.R. 248 (QB)

• Judge: McMahon, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 11, 2000
• Citations: (2001), 285 A.R. 248 (QB)

S.G.H. v. Gorsline (2001), 285 A.R. 248 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. MR.037

S.G.H. (plaintiff) v. Joseph Samuel Gorsline and The Board of Trustees of Calgary School District No. 19, also known as The Calgary Board of Education (defendants)

(Action No. 9401 06714)

Indexed As: S.G.H. v. Gorsline et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

McMahon, J.

March 6, 2001.

Summary:

A teacher sexually abused the plaintiff when she was a student aged 12 to 13. The plaintiff sued the teacher and the school board.

The Alberta Court of Queen's Bench allowed the action against the teacher. The court dismissed the action against the school board. The court assessed damages against the teacher.

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - The 35 year old plaintiff was sexually abused by a teacher when she was a student aged 12 to 13 - She claimed that the abuse negatively affected her vocational choices, resulting in a loss of income - The Alberta Court of Queen's Bench held that the plaintiff's pursuit of an appropriate career was delayed by 2.5 years - Prior to entering university, the plaintiff's work record was unfocused - She worked casually in several low-paying jobs - The court rejected that the plaintiff suffered a continuing income loss after graduation from university - The court awarded the $60,000 for the delay in career commencement - The award reflected the postponement of salary increases in future years as well as a deduction for actual earnings during the delay period - See paragraphs 144 to 166.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Damage Awards - Topic 492.1 ].

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The 35 year old plaintiff was sexually abused by a teacher when she was a student aged 12 to 13 - The teacher was also her track coach - There was no intercourse, but the abuse involved all manner of sexual activity, including digital penetration and fellatio, occurred several times per week and involved a significant abuse of trust - The abuse did not involve explicit threats or violence - The impact on the plaintiff included increased sexualized behaviour, self blame and problems with relationships, self-esteem and concentration - Most of the effects were resolved and she was able to carve out a happy life for herself, with a stable marriage and a satisfying career - The Alberta Court of Queen's Bench held that the teacher was liable for assault and battery and breach of fiduciary duty - The court awarded the plaintiff $110,000 in general and aggravated damages - The court refused to award punitive damages where the teacher had been imprisoned for the abuse - See paragraphs 126 to 141.

Damage Awards - Topic 643

Torts - Injury to the person - Breach of fiduciary duty - [See Damage Awards - Topic 627 ].

Damage Awards - Topic 2408

Aggravated damages - Sexual assault - [See Damage Awards - Topic 627 ].

Damage Awards - Topic 2414

Aggravated damages - Breach of fiduciary duty - [See Damage Awards - Topic 627 ].

Damages - Topic 1322

Exemplary or punitive damages - Bar - Where wrongdoer criminally convicted - [See Damage Awards - Topic 627 ].

Damages - Topic 1332

Exemplary or punitive damages - Vicarious liability - The plaintiff claimed that a school board was vicariously liable for sexual abuse by a teacher - The Alberta Court of Queen's Bench held that the teacher was liable for assault and battery and breach of fiduciary duty - The court awarded the plaintiff general and aggravated damages, but refused to award punitive damages - The court held that the school board was not vicariously liable - The court stated that, had it found the school board vicariously liable, it would have been liable for the compensatory damages - However, it would not have been liable for punitive damages, had they been awarded, as punitive damages were designed to punish a specific offender, not an employer which was subject to no-fault liability - See paragraph 142.

Damages - Topic 1552.2

General damages - General damages for personal injury - Delay in obtaining educational qualifications or employment - [See Damage Awards - Topic 492.1 ].

Education - Topic 730

Education authorities - School commissions or boards - Duties respecting students - Safety precautions - A teacher sexually abused the plaintiff between 1978 and 1979 when she was aged 12 to 13 - The plaintiff sued the school board for, inter alia, negligence - The plaintiff claimed that the school failed to observe and respond to the teacher's conduct, permitted an atmosphere which tolerated inappropriate behaviour and failed to initiate awareness and protection programs - The Alberta Court of Queen's Bench held that the school was not negligent - The assessment of appropriate standards of conduct and the adequacy of policies and programs had to be judged in the context of the time when the events occurred - The teacher's conduct, such as frequently touching female students, closing his office door and after school contact, was not considered inappropriate at the time and did not cause others to suspect sexual abuse - Therefore, it could not be said that the school board should have known about the abuse - Neither should the school have known of the need for policies and programs - See paragraphs 83 to 107 - The court rejected claims based on occupier's liability and breach of contract on the same basis - See paragraphs 123 and 124.

Education - Topic 733

Education authorities - School commissions or boards - Duties respecting students - Fiduciary duty - A teacher sexually abused the plaintiff when she was a student aged 12 to 13 - The plaintiff sued the school board for, inter alia, breach of fiduciary duty - The Alberta Court of Queen's Bench held that the school board was in a fiduciary relationship with the plaintiff at the relevant times - However, the court held that the school did not breach its fiduciary duties - No member of the administration knew or ought to have known of the teacher's misconduct - There was no evidence of negligence by the school board, much less personal wrongdoings beyond negligence nor any element of dishonesty, disloyalty or personal advantage - See paragraphs 108 to 118.

Education - Topic 733

Education authorities - School commissions or boards - Duties respecting students - Fiduciary duty - A teacher sexually abused the plaintiff when she was a student aged 12 to 13 - The plaintiff sued the school board for, inter alia, breach of fiduciary duty - The plaintiff argued that the school board owed students fiduciary duties which could not be delegated to its administration or teachers, though the performance of those duties was delegated - Therefore, a breach in the performance of those duties by a teacher became a direct breach by the school board - The plaintiff also claimed that the school board and the teacher were co-fiduciaries, owing similar duties to the students and were jointly and severally liable for a breach by either of them - The Alberta Court of Queen's Bench rejected the arguments, holding that such strict liability should not be imposed on a school board - See paragraphs 119 to 122.

Education - Topic 6463.1

Teachers (incl. principals and non-teaching professional employees) - Duties - Fiduciary duty - A teacher sexually abused the plaintiff when she was aged 12 to 13 - The teacher was also the plaintiff's track coach - The plaintiff sued the teacher for, inter alia, breach of fiduciary duty - The Alberta Court of Queen's Bench held that the teacher was in a fiduciary relationship with the plaintiff at the material times - The court stated that "he exercised sufficient authority and power over [the plaintiff] to affect her practical interests. He occupied a position of trust granted him by parents and the school board. He had privileged access to the plaintiff as a teacher. He was to nurture, instruct and care for her as a very young child. He was an adult and he was her teacher. The plaintiff, at her age, was vulnerable in his care" - The teacher breached his fiduciary duty - See paragraphs 51 to 55.

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - What constitutes a fiduciary relationship - [See first Education - Topic 733 and Education - Topic 6463.1 ].

Equity - Topic 3658

Fiduciary or confidential relationships - Breach of fiduciary relationship - By school board - [See both Education - Topic 733 ].

Equity - Topic 3658.1

Fiduciary or confidential relationships - Breach of fiduciary relationship - By teachers - [See Education - Topic 6463.1 ].

Interest - Topic 5008

Interest as damages - General principles - Prejudgment interest - Entitlement - The plaintiff was sexually abused by a teacher between 1978 and 1979 when she was aged 12 to 13 - She sued the teacher and the school in May 1994 - The Alberta Court of Queen's Bench held that the cause of action arose on September 1, 1992, when the plaintiff began to have substantial awareness of the harm inflicted and who really bore responsibility for it - The court held that the teacher was liable and awarded general and aggravated damages - The court awarded the plaintiff judgment interest commencing September 1, 1992, the date it held that the cause of action arose based on discoverability - See paragraph 143.

Interest - Topic 5141

Interest as damages - Prejudgment interest - Torts - Sexual assault - [See Interest - Topic 5008 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The plaintiff was sexually abused by a teacher between 1978 and 1979 when she was aged 12 to 13 - She sued the teacher and the school in May 1994 - The school argued that the claims were statute barred - The Alberta Court of Queen's Bench held that the plaintiff was immediately aware that the conduct was wrong - She knew as a teenager that she was troubled by the assaults - However, the plaintiff suppressed the memory and blamed herself - The court stated that "the cause of action does not accrue until the victim understands the true nature of the harm inflicted and that the abuser, and not the victim, bears responsibility for it" - The court held that it was not until the fall of 1992 that the plaintiff began to have substantial awareness of the harm inflicted and who really bore responsibility for it - Therefore, the claim was not statute barred - See paragraphs 30 to 44.

Limitation of Actions - Topic 1905

Actions - General - Breach of fiduciary duty - The plaintiff was sexually abused by a teacher between 1978 and 1979 when she was aged 12 to 13 - She sued the teacher and the school in May 1994 for, inter alia, breach of fiduciary duty - The Alberta Court of Queen's Bench held that the limitation period for breach of fiduciary duty claims was six years under s. 4(1)(e) of the Limitation of Actions Act, 1980, which covered "actions grounded on accident, mistake or other equitable ground of relief not hereinbefore specifically dealt with" - See paragraphs 45 and 46.

Limitation of Actions - Topic 3010

Actions in tort - General principles - When time begins to run - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Master and Servant - Topic 3703

Liability of master for acts of servant - Torts - Wilful acts - Sexual abuse - A teacher sexually abused the plaintiff when she was aged 12 to 13 - The teacher taught the plaintiff physical education and science and coached her in track - The abuse involved "all manner of sexual activity, short of intercourse" - Some of the abuse occurred on school property - The Alberta Court of Queen's Bench rejected the plaintiff's argument that the school board was vicariously liable - There was no significant connection between the teacher's duties and the wrongs committed to justify vicarious liability - The mere provision to the teacher of the opportunity to abuse, enhanced even as it was in his role as a physical education teacher and coach, was not enough to impose strict liability - It was a series of independent acts by the teacher for his own gratification that led to the abuse - See paragraphs 56 to 82.

Torts - Topic 49.30

Negligence - Standard of care - Particular persons and relationships - Educational institutions and instructors - [See Education - Topic 730 ].

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - [See Master and Servant - Topic 3703 ].

Torts - Topic 2654

Vicarious liability - Particular persons - Education authorities - [See Master and Servant - Topic 3703 ].

Torts - Topic 3620

Occupiers' liability or negligence for dangerous premises - Negligence of particular occupiers - Schools - [See Education - Topic 730 ].

Torts - Topic 9163

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Education authorities - [See Education - Topic 730 ].

Cases Noticed:

K.M. v. H.M., [1992] 3 S.C.R. 3; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289, refd to. [para. 31].

Calmont Leasing Ltd. v. Kredl et al. (1995), 165 A.R. 343; 89 W.A.C. 343 (C.A.), refd to. [para. 45].

Beaudoin et al. v. Conley (2000), 150 Man.R.(2d) 34; 230 W.A.C. 34 (C.A.), refd to. [para. 45].

T.L.B. v. R.E.B. - see Beaudoin et al. v. Conley.

Luscar Ltd. and Norcen Energy Resources Ltd. v. Pembina Resources Ltd., [1995] 2 W.W.R. 153; 162 A.R. 35; 83 W.A.C. 35 (C.A.), refd to. [para. 47].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 51].

E.D.G. v. Hammer et al., [1998] B.C.T.C. Uned. 974; 53 B.C.L.R.(3d) 89 (S.C.), refd to. [para. 53].

M.M. v. Board of School District No. 39 (Vancouver) et al., [2000] B.C.T.C. 851 (S.C.), refd to. [para. 53].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, refd to. [para. 54].

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. 56].

Lyth v. Dagg (1988), 46 C.C.L.T. 25 (B.C.S.C.), refd to. [para. 59].

P.A.B. v. Children's Foundation et al. (1997), 89 B.C.A.C. 93; 145 W.A.C. 93; 30 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 59].

Goodwin v. Commission scolaire Laurenval (1991), 8 C.C.L.T.(2d) 267 (Que. S.C.), refd to. [para. 59].

K.G. v. B.W. et al., [2000] O.T.C. 416 (Sup. Ct.), refd to. [para. 59].

S.T. v. North Yorkshire County Council, [1999] I.R.L.R. 98; [1998] E.W.J. No. 951 (C.A.), refd to. [para. 59].

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. 59].

John R. v. Oakland Unified School District (1989), 769 P.2d 948 (U.S. Cal.), refd to. [para. 59].

Barrett v. Ship Arcadia (1977), 2 C.C.L.T. 142 (B.C.S.C.), refd to. [para. 60].

Q. v. Minto Management Ltd. (1985), 49 O.R.(2d) 531 (H.C.), refd to. [para. 60].

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. 60].

K.S. et al. v. McLean et al., [1999] O.T.C. Uned. C26 (Gen. Div.), refd to. [para. 60].

Leblanc v. Canada (Attorney General) (1999), 43 C.C.E.L.(2d) 140 (B.C.S.C.), refd to. [para. 60].

John Doe v. Bennett (2000), 190 Nfld. & P.E.I.R. 277; 576 A.P.R. 277 (Nfld. T.D.), refd to. [para. 60].

W.K. v. Pornbacher (1997), 34 C.C.L.T.(2d) 174 (B.C.S.C.), refd to. [para. 60].

Blackwater et al. v. Plint, [1998] B.C.T.C. Uned. 755; 52 B.C.L.R.(3d) 18 (S.C.), refd to. [para. 61].

F.S.M. v. Clarke et al., [1999] 11 W.W.R. 301; 20 B.C.T.C. 161 (S.C.), refd to. [paras. 61, 115].

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. 61].

M.B. et al. v. British Columbia, [2000] B.C.T.C. 305 (S.C.), refd to. [para. 61].

V.P. v. Canada (Attorney General) and Starr (1999), 186 Sask.R. 161; 47 C.C.L.T.(2d) 249 (Q.B.), refd to. [para. 61].

D.W. v. Canada (Attorney General) and Starr (1999), 187 Sask.R. 21 (Q.B.), refd to. [para. 61].

Myers v. Board of Education of Peel County and Jowett (1981), 37 N.R. 227; 123 D.L.R.(3d) 1 (S.C.C.), refd to. [para. 85].

T.E.G.H. v. P.K. et al. (2001), 282 A.R. 45 (Q.B.), refd to. [para. 89].

C.D. v. Newfoundland (Minister of Social Services) et al. (1996), 137 Nfld. & P.E.I.R. 206; 428 A.P.R. 206 (Nfld. T.D.), refd to. [para. 110].

Nasser v. Rumford and Rumford (1977), 7 A.R. 459; 5 Alta. L.R.(2d) 84 (C.A.), refd to. [para. 123].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 126].

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. 126].

S.Y. v. F.G.C. (1996), 78 B.C.A.C. 209; 128 W.A.C. 209; 26 B.C.L.R.(3d) 155 (C.A.), refd to. [para. 129].

W.M.Y. v. Scott et al., [2000] B.C.T.C. 725 (S.C.), refd to. [para. 131].

J.P. v. Sinclair et al. (1999), 13 B.C.T.C. 360 (S.C.), refd to. [para. 131].

C.M.K. v. Young, [1994] B.C.J. No. 2729 (S.C.), refd to. [para. 131].

D.F.M. v. J.D., [2000] O.T.C. 7 (Sup. Ct.), refd to. [para. 133].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321; [1989] 4 W.W.R. 218; 58 D.L.R.(4th) 193; 36 B.C.L.R.(2d) 273; 90 C.L.L.C. 14,035; 25 C.C.E.L. 81, refd to. [para. 137].

A.B. et al. v. I.J. (1991), 119 A.R. 210; 81 Alta. L.R.(2d) 84 (Q.B.), refd to. [para. 138].

S.L.C. and Y.M.W. v. M.J.M. (1996), 179 A.R. 200; 37 Alta. L.R.(3d) 90 (Q.B.), refd to. [para. 138].

Roose v. Hollett et al. (1996), 154 N.S.R.(2d) 161; 452 A.P.R. 161 (C.A.), refd to. [para. 143].

Authors and Works Noticed:

Brown, A.F. and Zucker, M.A., Education Law (1994), p. 57 [para. 84].

Flannigan, Robert, Fiduciary Regulation of Sexual Exploitation (2000), Can. Bar Rev. 301, generally [para. 117].

Fleming, J.G., The Law of Torts (9th Ed. 1998), generally [para. 64].

Foster, W.F., Child Abuse in Schools: The Statutory and Common Law Obligations of Educators (1993), 4 E.L.J. 1, p. 43 [para. 84].

Linden, Allen M., Canadian Tort Law (6th Ed. 1997), p. 651 [para. 123].

Counsel:

Robert W. Calvert, Q.C., and Deanna H. Kolibar, for the plaintiff;

Michael R. Kinash, and Jeffrey R. Sermet, for the defendant, the Board of Trustees of Calgary School District #19;

Jospeph Samuel Gorsline, not represented by counsel.

This action was heard on September 11, 2000, before McMahon, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on March 6, 2001.