T.W.N.A. v. Clarke,

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Esson, Hall, Saunders, Low and Smith, JJ.A.
• Neutral Citation: 2003 BCCA 670
• Citation: (2003), 190 B.C.A.C. 250 (CA),2003 BCCA 670,235 DLR (4th) 13,[2004] 3 WWR 11,22 BCLR (4th) 1,190 BCAC 250,20 CCLT (3d) 165,[2003] CarswellBC 3004,[2003] BCJ No 2747 (QL),311 WAC 250,190 B.C.A.C. 250,311 W.A.C. 250,[2003] B.C.J. No 2747 (QL),235 D.L.R. (4th) 13,(2003), 190 BCAC 250 (CA)
• Date: 05 December 2003

T.W.N.A. v. Clarke (2003), 190 B.C.A.C. 250 (CA);

    311 W.A.C. 250

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. DE.033

T.W.N.A., E.A.J. and G.B.S. (respondents/appellants on cross-appeal/plaintiffs) v. Her Majesty The Queen in Right of Canada as represented by the Minister of Indian and Northern Affairs (appellant/respondent on cross-appeal/defendant) and Derek Clarke, Anthony William Harding (respondents/defendants) and The Anglican Church of Canada, The Anglican Diocese of Cariboo, The General Synod of the Anglican Church of Canada, The Synod of the Anglican Diocese of Cariboo and Derek Clarke (respondents/third parties)

(CA028940)

E.R.M. (respondent/appellant on cross-appeal/plaintiff) v. Her Majesty The Queen in Right of Canada as represented by the Minister of Indian and Northern Affairs (appellant/respondent on cross-appeal/defendant) and Derek Clarke, The General Synod of the Anglican Church of Canada, The Synod of the Anglican Diocese of Cariboo (respondents/defendants) and The General Synod of the Anglican Church of Canada, The Synod of the Anglican Diocese of Cariboo and Derek Clarke (respondents/third parties)

(CA028939)

(2003 BCCA 670)

Indexed As: T.W.N.A. et al. v. Clarke et al.

British Columbia Court of Appeal

Esson, Hall, Saunders, Low and Smith, JJ.A.

December 5, 2003.

Summary:

The plaintiffs had been students at the St. George's Indian Residential School near Lytton, B.C., in the 1960s and 1970s. In one action, seven plaintiffs sued the federal Crown, the Anglican Church and others for damages arising from alleged sexual assaults com­mitted on them while they were resi­dents at the school (the T.W.N.A. action). The federal Crown brought third party pro­ceedings against the Church. Four of the plaintiffs settled their claims during the trial. Another plaintiff brought a separate action (the E.R.M. action). Again, the federal Crown claimed contribution from the Church in third party proceedings.

(A dormitory supervisor (Clarke) was convicted of several counts of sexual assault of former students. In an earlier action, the British Columbia Supreme Court, in a deci­sion reported in 20 B.C.T.C. 161, awarded damages to a former student against Clarke, the federal Crown and the Church. Fault was appor­tioned 40% against the federal Crown and 60% against the Church. An appeal of that deci­sion was adjourned.)

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 1177, in the T.W.N.A. action, allowed the action against the federal Crown and Clarke, jointly and sev­erally in negligence and further against the federal Crown in vicarious liabil­ity. In the E.R.M. action, the Supreme Court allowed the action against the federal Crown, the Church and Clarke jointly and severally in negligence, and further against the federal Crown and the Church joint­ly and severally in vicarious liability. Dam­ages were assessed accordingly. The federal Crown appealed and the plain­tiffs cross-appealed the assessment of dam­ages.

The British Columbia Court of Appeal allowed the federal Crown's appeal in part and allowed the cross-appeals, respecting the assessment of nonpecuniary damages and damages for impaired earning capacity. The court remitted those claims to the trial court.

Editor's Note: see also prior related cases at 25 B.C.T.C. 152; [2000] B.C.T.C. 1031; [2000] B.C.T.C. 361; [2002] B.C.T.C. 109; [2000] B.C.T.C. Uned. 608; [2000] B.C.T.C. Uned. 609; [2000] B.C.T.C. 1035; [2000] B.C.T.C. 1036; [2001] B.C.T.C. Uned. 201, and [2001] B.C.T.C. 676.

Crown - Topic 1527

Torts by and against Crown - Liability of Crown for acts of servants - When Crown liable - [See Damages - Topic 903 ].

Crown - Topic 1578

Torts by and against Crown - Negligence by Crown - Sexual abuse by employees - [See Damages - Topic 1332.1 ].

Damages - Topic 508

Limits of compensatory damages - Gen­eral - Causes independent of wrongful act - The federal Crown and the Anglican Church were found liable for sexual assaults committed on former students at an Indian residential school by a dormitory supervisor - The British Columbia Court of Appeal held that the trial judge erred in his assessment of nonpecuniary damages by (1) applying the principles of causation to determine both liability and damages; (2) ruling that pre-existing inherent conditions and unre­lated intervening events were irrelevant to dam­age assessment unless their effects were already manifest and disabling (hav­ing ruled that the assaults were a material cause of the plaintiffs' difficulties), and (3) contravening the principle that the plain­tiffs must be restored to their original position absent the tort - See paragraphs 39 to 78.

Damages - Topic 529

Limits of compensatory damages - Re­moteness - Torts - Recoverable damages - General - The British Columbia Court of Appeal discussed the principles relating to causation and the assessment of dam­ages - See paragraphs 14 to 38.

Damages - Topic 591

Limits of compensatory damages - Predis­position to damage (thin skull or crumbl­ing skull rule) - "Thin skull" or "crumbl­ing skull" - The British Columbia Court of Appeal discussed the concepts of the "thin skull" and the "crumbling skull" rules - See paragraphs 18 to 37 - The trial judge, in his assessment of dam­ages awarded to former students at an Indian residential school for sexual assaults, improperly applied these rules - See paragraphs 47 to 78.

Damages - Topic 903

Aggravation - General - Aggravated dam­ages - Sexual abuse - Former students at an Indian residential school sued the feder­al Crown, the Anglican Church and others for damages for sexual assaults committed on them by a dormitory super­visor (Clarke) - The school principal, who had the practical management of the school and who was directly responsible to the federal Crown, learned of the abuse but pur­pose­fully covered it up and failed to assist the vic­tims - The British Columbia Court of Appeal affirmed that the federal Crown was vicar­iously liable for aggravated dam­ages - The court rejected the argument that aggravated damages could not be awarded against the federal Crown in the absence of some conduct by it that aggravated the students' losses - See paragraphs 127 to 148.

Damages - Topic 904

Aggravation - General - Aggravated dam­ages - Defined - The British Colum­bia Court of Appeal discussed the nature of aggravated damages - See paragraphs 100 to 102.

Damages - Topic 906

Aggravation - General - Aggravated dam­ages v. exemplary damages - The British Columbia Court of Appeal dis­cussed the difference between aggravated and punitive damages - See paragraph 100.

Damages - Topic 1296.1

Exemplary or punitive damages - Exemp­lary or punitive damages defined - The British Columbia Court of Appeal dis­cussed the nature of punitive damages - See paragraphs 100, 103 to 104.

Damages - Topic 1332.1

Exemplary or punitive damages - Liability of Crown - Former students at an Indian residential school sued the federal Crown, the Anglican Church and others for dam­ages for sexual assaults committed on them by a dormitory supervisor (Clarke) - The school principal, who had the practical management of the school and who was directly responsible to the federal Crown, learned of the abuse but purpose­fully covered it up and failed to assist the vic­tims - The British Columbia Court of Appeal affirmed that the federal Crown was directly liable for punitive damages because the principal's deplorable conduct was, in fact, the federal Crown's - See paragraphs 112 to 126.

Damages - Topic 1549

General damages - For personal injury - Impairment of earning capacity - The federal Crown and the Anglican Church were found liable to former students at an Indian residential school for sexual assaults com­mitted on them by a dormitory super­visor - The trial judge dismissed their claims for damages for past wage loss and impair­ment of earning capacity - The British Columbia Court of Appeal held that the trial judge erred (1) by overlooking or misapprehend­ing important evidence; (2) by imposing upon the students an incorrect standard of proof for their claimed future losses, and (3) in failing to consider whether there was a real and substantial possibility that they would have achieved higher earnings absent the assaults and to compensate them by an award reflecting that chance - See paragraphs 79 to 99.

Master and Servant - Topic 3703

Liability of master for acts of servant - Torts - Wilful acts - Sexual abuse - [See Damages - Topic 903 ].

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - [See Damages - Topic 903 ].

Cases Noticed:

F.S.M. v. Clarke et al., [1999] 11 W.W.R. 301; 20 B.C.T.C. 161 (S.C.), refd to. [para. 3].

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. 11].

Polemis, Furness, Withy & Co., Re, [1921] 3 K.B. 560 (C.A.), refd to. [para. 17].

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (Wagon Mound), [1961] A.C. 388 (P.C.), refd to. [para. 17].

Dulieu v. White and Sons, [1901] 2 K.B. 669 (D.C.), refd to. [para. 18].

Smith v. Leech Brain & Co., [1962] 2 Q.B. 405, consd. [para. 20].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103, refd to. [para. 25].

York v. Johnston et al. (1997), 93 B.C.A.C. 181; 151 W.A.C. 181; 37 B.C.L.R.(3d) 235 (C.A.), consd. [para. 31].

Steenblok v. Funk (1990), 46 B.C.L.R.(2d) 133 (C.A.), refd to. [para. 37].

Rosvold v. Dunlop et al. (2001), 147 B.C.A.C. 56; 241 W.A.C. 56; 84 B.C.L.R.(3d) 158; 2001 BCCA 1, refd to. [para. 37].

M.B. v. British Columbia (2001), 151 B.C.A.C. 70; 249 W.A.C. 70; 87 B.C.L.R.(3d) 12; 2001 BCCA 227, revd. (2003), 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, refd to. [para. 49].

M.M. v. R.F. et al. (1997), 101 B.C.A.C. 97; 164 W.A.C. 97; 52 B.C.L.R.(3d) 127 (C.A.), consd. [para. 50].

Pryor v. Bains (1986), 69 B.C.L.R. 395 (C.A.), consd. [para. 54].

Edgar v. Freedman (1997), 94 B.C.A.C. 216; 152 W.A.C. 216; 40 B.C.L.R.(3d) 87 (C.A.), consd. [para. 58].

McKelvie v. Ng (2001), 156 B.C.A.C. 225; 255 W.A.C. 225; 2001 BCCA 384, consd. [para. 59].

Hosak v. Hirst (2003), 177 B.C.A.C. 30; 291 W.A.C. 30; 9 B.C.L.R.(4th) 203; 2003 BCCA 42, consd. [para. 60].

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 SCC 51, refd to. [para. 62].

Brown v. Golaiy (1985), 26 B.C.L.R.(3d) 353 (S.C.), refd to. [para. 97].

Palmer v. Goodall (1991), 53 B.C.L.R.(2d) 44 (C.A.), refd to. [para. 98].

Vorvis v. Insurance Corp. of British Columbia­­, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 100].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 100].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, not appld. [para. 101].

Huff v. Price (1990), 51 B.C.L.R.(2d) 282 (C.A.), refd to. [para. 101].

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. 102].

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. 102].

Daniels v. Thompson, [1998] 3 N.Z.L.R. 22 (C.A.), refd to. [para. 103].

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.), leave to appeal refused (1997), 223 N.R. 221; 160 N.S.R.(2d) 80; 473 A.P.R. 80 (S.C.C.), consd. [para. 116].

Robitaille v. Vancouver Hockey Club Ltd. (1981), 124 D.L.R.(3d) 228 (B.C.C.A.), consd. [para. 119].

Ship Rhone v. Ship Peter A.B. Widener et al., [1993] 1 S.C.R. 497; 148 N.R. 349, refd to. [para. 121].

Blackwater et al. v. Plint et al., [2001] B.C.T.C. 997; 93 B.C.L.R.(3d) 228; 2001 BCSC 997, refd to. [para. 122].

Boyd v. British Columbia, [2001] B.C.T.C. 667; 2001 BCSC 667, consd. [para. 129].

M.B. v. British Columbia, [2000] B.C.T.C. 305; 2000 BCSC 735, consd. [para. 129].

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; 60 B.C.L.R.(3d) 92 (C.A.), consd. [para. 134].

C.A. et al. v. Critchley et al., [1997] B.C.T.C. Uned. 702; 35 B.C.L.R.(3d) 234 (S.C.), refd to. [para. 136].

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. 143].

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

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. 143].

Authors and Works Noticed:

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), p. 348 [para. 29].

Counsel:

M. Taylor, M. Double, L. Riddle and A.S. Maclure, for the appellant, Canada (Indian Affairs);

P. Grant, D. Soroka and B. O'Reilly, for the respondents, T.W.N.A., E.A.J., G.B.S. and E.R.M.

These appeals and cross-appeals were heard at Vancouver, British Columbia, on January 27-28, 2003, before Esson, Hall, Saunders, Low and Smith, JJ.A., of the British Columbia Court of Appeal. Smith, J.A., delivered the following judgment for the court on December 5, 2003.