Young v. Bella et al., (2006) 254 Nfld. & P.E.I.R. 26 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 27, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 254 Nfld. & P.E.I.R. 26 (SCC);2006 SCC 3;[2006] SCJ No 2 (QL);343 NR 360;261 DLR (4th) 516;[2006] CarswellNfld 19;254 Nfld & PEIR 26;[2006] 1 SCR 108;JE 2006-290

Young v. Bella (2006), 254 Nfld. & P.E.I.R. 26 (SCC);

    764 A.P.R. 26

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] Nfld. & P.E.I.R. TBEd. JA.021

Wanda Young (appellant) v. Leslie Bella, William S. Rowe and Memorial University of Newfoundland (respondents) and Child Welfare League of Canada (intervenor)

(30670; 2006 SCC 3; 2006 CSC 3)

Indexed As: Young v. Bella et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ.

January 27, 2006.

Summary:

A university professor, believing the appendix in a student's term paper was a confession of past sexual abuse of children she babysat, went to both the Acting Director and later the Director of the School of Social Work. The latter reported the matter to Child Protection Services, as he was legally required to do by s. 38(1) of the Child Welfare Act. The matter was never discussed with the student. The file sat for two years, but the student was red-flagged in the Child Abuse Register as a potential child abuser. When the student was finally contacted, the matter was resolved in one day with the student providing information that the appendix was from another book, not a personal confession. The student brought an action for damages in negligence and defamation against the professor, the university and the Director. The trial judge refused to put the defamation claim to the jury and withdrew the issue of malice as having no foundation. The trial judge ruled that s. 38(6) of the Act (protection from liability for reporting child abuse) did not preclude the negligence action. The jury found the university liable in negligence and awarded damages totalling $839,400. The professor, university and Director appealed the finding of liability, submitting that s. 38(6) precluded the negligence action absent malice or bad faith. The student cross-appealed the trial judge's finding that there was no malice.

The Newfoundland and Labrador Court of Appeal, Rowe and Roberts, JJ.A., dissenting in part, in a judgment reported (2004), 241 Nfld. & P.E.I.R. 35; 715 A.P.R. 35, allowed the appeal and dismissed the cross-appeal. Section 38(6) precluded any civil action (including negligence and defamation) where the professor's reporting was not done maliciously or without reasonable cause (i.e. no bad faith). The student appealed.

The Supreme Court of Canada allowed the appeal and restored the jury's verdict. The professor acted on mere conjecture and speculation, having no "reasonable cause" to make a report as required by s. 38(b). The lack of bad faith did not constitute "reasonable cause". Section 38(6) did not preclude liability. There were no grounds to interfere with the jury's finding of negligence or assessment of damages.

Damage Awards - Topic 642

Torts - Injury to the person - Loss of reputation - The defendants (professor, Director of School of Social Work and university) were found by a jury to be negligent in reporting a student as a potential child abuser based on an unfootnoted case study in the appendix of a paper on juvenile sexual abuse - Had the defendants contacted the student before filing a report, it would have been clear that there was no information giving the defendants "reasonable cause" to make a mandatory report (Child Welfare Act, s. 38) - The student was unaware for the two years that the file sat uninvestigated that she had been red-flagged in the Child Abuse Registry as a potential child abuser - The jury, on the basis of evidence of lost economic opportunities, loss of reputation and the psychological effects on the student, awarded her $839,400 damages, including $430,000 general damages for nonpecuniary loss - The Supreme Court of Canada held that notwithstanding it would have awarded a lesser amount, there was no grounds for interfering with the jury's damage award, because it was not "wholly disproportionate or shockingly unreasonable" and did not shock the conscience of the court - See paragraphs 62 to 66.

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - A jury awarded a plaintiff $430,000 general damages for nonpecuniary loss for the defendants' negligence in filing a report of potential child abuse under s. 38 of the Child Welfare Act - The defendants argued that there should be a judicially imposed cap on general damages for nonpecuniary loss in this case, just as there was for catastrophic personal injuries cases - The Supreme Court of Canada stated that "we leave open for consideration in another case (where the policy considerations supporting a cap are more fully developed in evidence and argument) the issue of whether and in what circumstances the cap applies to nonpecuniary damages outside the catastrophic personal injury context" - See paragraphs 65 to 66.

Infants - Topic 3305

Child abuse - General - Mandatory reporting provisions - A student's paper on juvenile sex offenders attached as an appendix a case study from a text - It was not footnoted - There was no information in the case study that would reasonably lead to a conclusion that it was the student's confession that she had sexually abused children - The student's professor speculated that the student confessed to abusing children - The professor voiced her concerns to the Acting Director, who advised the professor to speak with the student (not done) and then to the Director of the School of Social Work voicing her concerns, who, without any inquiry, reported the matter to Child Protection Services - No one discussed the matter with the student - The file sat without investigation for two years, but the student was red-flagged in the Child Abuse Registry as a potential child abuser - The student, still unaware of the matter, was denied admission to the School and allegedly had her career opportunities limited by the red-flagging - A jury found the professor and Director negligent by breaching the duty of care owed to the student - The Supreme Court of Canada affirmed negligence in reporting abuse without first getting the facts straight and the jury's award of $839,400 damages - Absent any information giving "reasonable cause" to file a report, s. 38(6) of the Child Welfare Act did not apply to absolve the professor, Director and University of liability.

Infants - Topic 3305

Child abuse - General - Mandatory reporting provisions - Section 38(1) of the Child Welfare Act mandated that a person possessing knowledge that a child was, had been or was in danger of sexual abuse must "immediately report the matter" - Section 38(6) exempted a person from liability from making a report unless it was "done maliciously or without reasonable cause" - The Supreme Court of Canada rejected the submission that "without reasonable cause" meant "without bad faith" - Information that a child may be in danger sufficed to trigger the obligation to report immediately - There was no duty to investigate the information for accuracy before reporting - However, concern must also be had for third parties who might be adversely affected by irresponsible reports - The court stated that "informants are not required to have reasonable cause to believe abuse has in fact occurred before making a report. They are, however, obliged to have reasonable cause to make a report to CPS, i.e. to possess information that CPS reasonably ought to be asked to look into, even if it turns out to be misinformation." See paragraphs 44 to 51.

Practice - Topic 8806

Appeals - General principles - Duty of appellate court regarding damage awards by a jury - [See Damage Awards - Topic 642 ].

Torts - Topic 6827

Defences - Statutory compliance, authority or immunity - Immunity from negligence -[See both Infants - Topic 3305 ]

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 26].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 26].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 28].

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860; 262 N.R. 285; 2000 SCC 60, refd to. [para. 28].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 31].

Fulton v. Globe and Mail et al. (1996), 194 A.R. 254 (Q.B. Master), affd. (1997), 207 A.R. 374; 53 Alta. L.R.(3d) 212 (Q.B.), refd to. [para. 56].

Elliot et al. v. Canadian Broadcasting Corp. et al. (1993), 16 O.R.(3d) 677 (Gen. Div.), affd. (1995), 82 O.A.C. 115; 25 O.R.(3d) 302 (C.A.), refd to. [para. 56].

Spring v. Guardian Assurance plc et al., [1994] 3 All E.R. 129; 174 N.R. 164 (H.L.), refd to. [para. 56].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601 (P.C.), refd to. [para. 64].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 65].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 65].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287, refd to. [para. 65].

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. 65].

S.Y. v. F.G.C. (1996), 78 B.C.A.C. 209; 128 W.A.C. 209 (C.A.), refd to. [para. 65].

Statutes Noticed:

Child Welfare Act, R.S.N. 1990, c. C-12, sect. 38(1), sect. 38(6) [para. 44].

Counsel:

Gillian D. Butler, Q.C., and Kimberley M. McLennan, for the appellant;

R. Wayne Bruce and Susan E. Norman, for the respondents;

Michael E. Barrack and Christopher A. Wayland, for the intervenor.

Solicitors of Record:

Gillian D. Butler, St. John's, Nfld. & Lab., for the appellant;

Stewart McKelvey Stirling Scales, St. John's, Nfld. & Lab., for the respondent;

McCarthy Tetrault, Toronto, Ontario, for the intervenor.

This appeal was heard on October 20, 2005, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On January 27, 2006, McLachlin, C.J.C., and Binnie, J., jointly delivered the following judgment in both official languages for the Supreme Court of Canada.