Young v. Bella et al., (2006) 343 N.R. 360 (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), 343 N.R. 360 (SCC);2006 SCC 3;[2006] SCJ No 2 (QL);261 DLR (4th) 516;JE 2006-290;[2006] 1 SCR 108;343 NR 360;[2006] CarswellNfld 19;254 Nfld & PEIR 26

Young v. Bella (2006), 343 N.R. 360 (SCC)

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] N.R. TBEd. JA.015

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.