BLACKWATER V PLINT [2005] SCC 58
FACTS:-
The government of Canada and the United Church of Canada operated an Indian residential school in British Columbia in the 1940’s to the 1960’s. Aboriginal children were taken from their families and subject to corporal punishment. Some were seriously sexually assaulted. A number of students brought actions for damages. The trial judge found that all the claims other than those of a sexual nature were statute barred, but held the government of Canada liable for the assaults on the basis of breach of non-delegable statutory duty. In addition Canada and the Church were jointly and vicariously liable. The trial judge dismissed the allegations of negligence on the evidence before him. The Court of Appeal of British Columbia applied a doctrine of charitable immunity to exempt the church from liability and placed the liability on the government of Canada. The case came before the Supreme Court of Canada.
HELD:-
Chief Justice McLachlin examined the various issues in this case.
Negligence
The Claimant had said that the Church and Canada should have investigated why so many children were running away and clarified the complaints of the children. McLachlin J said that the trial judge had addressed these matters thoroughly and sensitively in his reasons, and the Court of Appeal had correctly concluded that no error in his conclusions on negligence had been demonstrated.
Vicarious Liability
McLachlin J said that vicarious liability might be imposed where there was a significant connection between the conduct authorised by the employer or controlling agent and the wrong. Having created or enhanced the risk of the wrongful conduct, it was appropriate that the employer or operator of the enterprise be held responsible, even though the wrongful act might be contrary to its desires. The court would base its decision on several factors which included:-
In the Court of Appeal below, there had been concern that two Defendants, the Church and the government could be vicarious liable for the same conduct. However joint liability was perfectly possible according to PS Atiyah in “Vicarious Liability in the Law of Torts.”
The Doctrine of Charitable Immunity
The Court of Appeal below had found that in any event, the Church would be exempted from any liability on the basis of the doctrine of charitable immunity. However this was a class based exemption, which was not supported by either principle or jurisprudence. Firstly exempting non profit organisations when the government had involvement would not motivate such organisation to take precautions to screen their employees and protect children from sexual abuse. Secondly, the Church in this case was not working with volunteers and it clearly supervised its employees’ actions. The charitable exemption was problematic since some organisations would be able to claim that they were non profit making and others could not.
Non delegable Statutory Duty
McLachlin J concluded from the terms of the Indian Act 1951 that no non-delegable duty of care existed. Sections 113 and 114 of that Act authorised the government to set up schools for Indian children, but the text did not support the inference of a statutory duty.
Fiduciary duty
McLachlin J said that a fiduciary duty was a trust like duty, involving duties of loyalty and an obligation to act in a disinterested manner that put the recipient’s interest ahead of all other interests. This argument had only been pursued in the Supreme Court and it relied on studies and writings, none of which were proved in evidence in the courts below. It would be unfair to rely on this material and consequently this argument could not be resolved in this appeal.
Apportionment of damages
The trial judge had found the government to be 75% at fault and the church 25% at fault. Since they were found jointly and severally liable, the parties could recover full damages against either or both of them. However the issue remained as to whether either of the parties was entitled to be completely or partially indemnified by the other.
The British Columbia Negligence Act RSBC 1996 c.333 stated that it was not possible to establish different degrees of fault, the liability should be apportioned equally. Here the trial judge had found that Canada was in a better position than the Church to supervise the situation and prevent the loss. That finding was grounded in evidence and McLachlin J would not interfere with it.
Damages : the effect of prior abuse
The Claimant had suffered abuse prior to coming into the care of the church. The trial judge had sought to exclude damage relating to the pre-care trauma. He concluded that the Claimant’s family life prior to coming into care, made it likely that he would have suffered serious psychological difficulties even if the sexual abuse had never occurred. McLachlin J was not persuaded that the trial judge was in error. The basic principle was the damages sought to put the Claimant in the position he or she would have been in, but for the tort for which the Defendant was liable.
General and aggravated damages – quantum
The trial judge’s award would be upheld at $125,000 general damages and $20,000 aggravated damages.
Punitive damages
The trial judge had awarded punitive damages of $25,000 as against the abuser. The Claimant argued that such damages should be awarded against the government. McLachlin J disagreed.
Loss of future earning opportunity
The trial judge did not order any damages under this head, but the Court of Appeal allowed an award of $20,000, which the Claimant had appealed. McLachlin J said that he was satisfied that no evidentiary record existed to specifically qualify any future loss of earnings, and the Court of Appeal was correct to award a conventional amount.
FACTS:-
The government of Canada and the United Church of Canada operated an Indian residential school in British Columbia in the 1940’s to the 1960’s. Aboriginal children were taken from their families and subject to corporal punishment. Some were seriously sexually assaulted. A number of students brought actions for damages. The trial judge found that all the claims other than those of a sexual nature were statute barred, but held the government of Canada liable for the assaults on the basis of breach of non-delegable statutory duty. In addition Canada and the Church were jointly and vicariously liable. The trial judge dismissed the allegations of negligence on the evidence before him. The Court of Appeal of British Columbia applied a doctrine of charitable immunity to exempt the church from liability and placed the liability on the government of Canada. The case came before the Supreme Court of Canada.
HELD:-
Chief Justice McLachlin examined the various issues in this case.
Negligence
The Claimant had said that the Church and Canada should have investigated why so many children were running away and clarified the complaints of the children. McLachlin J said that the trial judge had addressed these matters thoroughly and sensitively in his reasons, and the Court of Appeal had correctly concluded that no error in his conclusions on negligence had been demonstrated.
Vicarious Liability
McLachlin J said that vicarious liability might be imposed where there was a significant connection between the conduct authorised by the employer or controlling agent and the wrong. Having created or enhanced the risk of the wrongful conduct, it was appropriate that the employer or operator of the enterprise be held responsible, even though the wrongful act might be contrary to its desires. The court would base its decision on several factors which included:-
- The opportunity afforded by the employer’s enterprise for the employee to abuse his power
- The extent to which the wrongful act furthered the employer’s interests
- The extent to which the employment situation created intimacy or other conditions conducive to the wrongful act
- The extent of power conferred on the employee in relation to the victim
- The vulnerability of potential victims
In the Court of Appeal below, there had been concern that two Defendants, the Church and the government could be vicarious liable for the same conduct. However joint liability was perfectly possible according to PS Atiyah in “Vicarious Liability in the Law of Torts.”
The Doctrine of Charitable Immunity
The Court of Appeal below had found that in any event, the Church would be exempted from any liability on the basis of the doctrine of charitable immunity. However this was a class based exemption, which was not supported by either principle or jurisprudence. Firstly exempting non profit organisations when the government had involvement would not motivate such organisation to take precautions to screen their employees and protect children from sexual abuse. Secondly, the Church in this case was not working with volunteers and it clearly supervised its employees’ actions. The charitable exemption was problematic since some organisations would be able to claim that they were non profit making and others could not.
Non delegable Statutory Duty
McLachlin J concluded from the terms of the Indian Act 1951 that no non-delegable duty of care existed. Sections 113 and 114 of that Act authorised the government to set up schools for Indian children, but the text did not support the inference of a statutory duty.
Fiduciary duty
McLachlin J said that a fiduciary duty was a trust like duty, involving duties of loyalty and an obligation to act in a disinterested manner that put the recipient’s interest ahead of all other interests. This argument had only been pursued in the Supreme Court and it relied on studies and writings, none of which were proved in evidence in the courts below. It would be unfair to rely on this material and consequently this argument could not be resolved in this appeal.
Apportionment of damages
The trial judge had found the government to be 75% at fault and the church 25% at fault. Since they were found jointly and severally liable, the parties could recover full damages against either or both of them. However the issue remained as to whether either of the parties was entitled to be completely or partially indemnified by the other.
The British Columbia Negligence Act RSBC 1996 c.333 stated that it was not possible to establish different degrees of fault, the liability should be apportioned equally. Here the trial judge had found that Canada was in a better position than the Church to supervise the situation and prevent the loss. That finding was grounded in evidence and McLachlin J would not interfere with it.
Damages : the effect of prior abuse
The Claimant had suffered abuse prior to coming into the care of the church. The trial judge had sought to exclude damage relating to the pre-care trauma. He concluded that the Claimant’s family life prior to coming into care, made it likely that he would have suffered serious psychological difficulties even if the sexual abuse had never occurred. McLachlin J was not persuaded that the trial judge was in error. The basic principle was the damages sought to put the Claimant in the position he or she would have been in, but for the tort for which the Defendant was liable.
General and aggravated damages – quantum
The trial judge’s award would be upheld at $125,000 general damages and $20,000 aggravated damages.
Punitive damages
The trial judge had awarded punitive damages of $25,000 as against the abuser. The Claimant argued that such damages should be awarded against the government. McLachlin J disagreed.
Loss of future earning opportunity
The trial judge did not order any damages under this head, but the Court of Appeal allowed an award of $20,000, which the Claimant had appealed. McLachlin J said that he was satisfied that no evidentiary record existed to specifically qualify any future loss of earnings, and the Court of Appeal was correct to award a conventional amount.