Reasons for Judgment of the Honourable Mr. Justice Esson:

[1]            These reasons deal with the liability issues raised on these appeals under the following headings:

      Paras.

      1 -24 Background

      25-50 Appeal by the Church

      51-65 Appeals by Canada

      66-75 Appeals by plaintiffs other than M.J. on                    liability issues

      76-82 Appeal by plaintiffs on loss of culture

      83-90 Appeal by 4 plaintiffs re limited evidence

      91-99 Appeal by M.J. against dismissal of action

[2]            From 1891 to 1973, the Alberni Indian Residential School ("AIRS") existed to provide elementary and high school education to Indian children whose families lived on reserves in numerous isolated locations on the west coast of Vancouver Island.  I use the word “Indian” rather than “First Nations” because, as Madam Justice Southin said in Taku River Tlingit First Nation v. Ringstad et al (2002), 98 B.C.L.R. (3d) 16, 2002 BCCA 59, “in legal matters it behoves judges to use the terminology adopted by Parliament”.

[3]            In 1996, a number of former students at AIRS brought actions seeking damages for sexual assaults and a range of other wrongs which, they alleged, were done to them while they were resident at AIRS.  All of the claims arose from events in the 1940s, 1950s and 1960s.  The four actions brought by some 27 plaintiffs were, for convenience, referred to as “Blackwater”.  They came to trial together before Mr. Justice Brenner (as he then was) in February 1998 and were heard over a total of 111 days to December 2000.  By the time the second judgment was delivered on July 10, 2001, the trial judge (as I will generally refer to him) was Chief Justice of the Supreme Court.

[4]            The trial was conducted in three phases:  vicarious liability, other liability issues, and damages.  The trial judge issued two sets of reasons for judgment, the first of which dealt with the issue of vicarious liability of the defendants Canada and United Church (W.R.B. v. Plint (1998), 161 D.L.R. (4th) 538, 52 B.C.L.R. (3d) 18 (S.C.)), and the second of which dealt with all other liability issues and the damages issues (93 B.C.L.R. (3d) 228, 2001 BCSC 997). 

[5]            Most of the cases were settled during the period between the first and second phases.  Accordingly, the final judgment dealt with the actions of only seven plaintiffs.

[6]            The appeals before us arise out of the seven actions which were carried to judgment.  In six of them, the trial judge found allegations of paedophilic sexual assault to have been established.  The action of the plaintiff, M.J., who alleged that she had been sexually assaulted by two male staff members, one of whom was the principal, over the eight-year period she was at the school, was dismissed.  In all of the actions, the trial judge found that all causes of action other than that for sexual assault were statute barred.  There is now, of course, no limitation period in this province in respect of sexual assault.

[7]            In each of the six actions in which the plaintiffs succeeded, the only allegations of sexual assault found to have been proven were those committed by the defendant Plint, who was employed at the school as a dormitory supervisor in two five-year periods which the trial judge identified as "from 1948 to approximately 1953 and from 1963 to 1968".  In this court, there is an issue between Canada and two plaintiffs as to whether the first period continued beyond 1953.  That issue arises from Canada’s contention that before May 14, 1953, there was no right to sue Canada for torts committed by its servants.

[8]            In each of the six cases in which liability was found, the trial judge held Canada and the United Church (the Church) jointly liable on the basis of vicarious liability for the torts committed by Plint.  As between them, liability was apportioned 75% against Canada and 25% against the Church.

[9]            The Church appeals seeking to have the actions dismissed against it on the ground that no case was established for holding it vicariously liable.

[10]        Canada, which maintained at trial that the Church should be held solely liable on the ground of vicarious liability, has abandoned that position but seeks in this court to support the finding that the United Church is jointly liable.  Canada cross-appeals on the issue of apportionment, contending that the rule in the circumstances is that each of the two parties held jointly liable is liable for the full amount of the judgment but, to the extent that it pays more than 50%, is entitled to contribution from the other to achieve equality.

[11]        Canada and the Church both contend that the trial judge erred in awarding aggravated damages against them.  Canada also contends that the trial judge erred in finding that it breached its non-delegable duty of care to the plaintiffs.  That finding did not affect the damages awarded against Canada.

[12]        All of the plaintiffs cross-appeal contending that the trial judge ought to have found both Canada and the Church liable for Plint’s deliberate torts on the basis of all of the four causes of action pleaded by them:  negligence, non-delegable duty, breach of fiduciary duty and vicarious liability.  The trial judge found no negligence and no breach of fiduciary duty on the part of either Canada or the Church.  As I have noted, he held Canada to have breached its non-delegable duty toward the plaintiffs.

[13]        The plaintiffs also sought damages for cultural losses, particularly loss of their native languages, caused by their being placed by Canada in the residential school.  They say that the trial judge erred in dismissing this aspect of their claims as statute barred.

[14]        Each of the successful plaintiffs appeals the amount of damages awarded to him.  They say that the awards of non-pecuniary damages are inordinately low; that, excluding one plaintiff, they should have received additional damages for loss of earnings or impairment of earning capacity, or both; and that, in addition to being liable for aggravated damages, both Canada and the Church should be liable for the punitive damages awarded against Plint.  They say that they should recover damages for cost of future care denied by the trial judge.  They ask this court either to increase their damages or remit their claims to the trial court for reassessment.

The History of AIRS

[15]        In 1891, the Presbyterian Church founded a residential school at Port Alberni for the education of Indian children.  The land and buildings were then owned by the Presbyterian Church which, until 1911, operated the school with periodic financial assistance from Canada.  At about that time, Canada acquired the land and buildings and continued to own and maintain them until the end of operation in 1973.

[16]        In 1894, the Indian Act was amended (adding s. 137) to empower the Governor in Council to

... make regulations, either general or affecting the Indians of any province of any named band, to secure the compulsory attendance of children at school....

[17]        The Act was amended from time to time thereafter.  There was no material change to it during the period in which this case arose.  I quote from the 1951 Indian Act (15 George VI, Chap. 29):

113.  The Governor in Council may authorize the Minister, in accordance with this Act,

(a)   to establish, operate and maintain schools for Indian children,

(b)   to enter into agreements on behalf of His Majesty for the education in accordance with this Act of Indian children, with

(i)     the government of a province,

(ii)    the council of the Northwest Territories,

(iii)   the council of the Yukon Territory,

(iv)    a public or separate school board, and

(v)     a religious or charitable organization.

114.  The Minister may

(a)   provide for and make regulations with respect to standards for buildings, equipment, teaching, education, inspection and discipline in connection with schools,

(b)   provide for the transportation of children to and from school,

(c)   enter into agreements with religious organizations for the support and maintenance of children who are being educated in schools operated by those organizations, and

(d)   apply the whole or any part of moneys that would otherwise be payable to or on behalf of a child who is attending a residential school to the maintenance of that child at that school.

[18]        In 1911, the Church and Canada entered into a written agreement formalizing their arrangement wherein the Church was described as the “Management”.  The Church undertook to manage the school in accordance with regulations and standards prescribed by Canada while Canada undertook to provide the funding for the operation of the school on a per capita basis.  The written agreement, which was expressed to be for a period of five years, was never formally extended.  The trial judge, however, found that AIRS continued to operate under the general principles set out in the 1911 contract, with minor variations in such matters as the rate of payment.

[19]        The 1911 agreement described the parties as:

His Majesty The King represented by the Superintendent General of Indian Affairs of Canada, of the first part (hereinafter called the “Superintendent General”) and the Reverend R.P. MacKay, D.D. Secretary of the Foreign Mission Committee of the Presbyterian Church in Canada, of the second part (hereinafter called the “Management”).

[20]        The 1911 contract was a standard form which was imposed upon all Indian residential schools.  As was noted in s. 2, “Systemic Neglect: Administrative and Financial Realities”, of chapter 10, “Residential Schools”, of the 1996 Report of the Royal Commission on Aboriginal Peoples (Vol. 1, Part Two), there had been concern within the Department of Indian Affairs that “The clergy seem to be going wild on the subject of Indian education and it is time some limit should be fixed as to their demands.”  As the Royal Commission noted in that section, the 1911 contract established:

... the department as senior partner in the joint management of the schools.  It had primary responsibility for setting standards of care and education, including the appointment and dismissal of teachers,...  

As an example of the degree of control exercised by the department, it may be noted that the contract provided no child was to be admitted unless “the Superintendent General has authorized acceptance of such child.”

[21]        On February 10, 1953, the Superintendent General caused to be enacted regulations described as follows:

REGULATIONS WITH RESPECT TO TEACHING, EDUCATION, INSPECTION,

AND DISCIPLINE FOR INDIAN RESIDENTIAL SCHOOLS, MADE AND

ESTABLISHED BY THE SUPERINTENDENT GENERAL OF INDIAN

AFFAIRS PURSUANT TO PARAGAPH (a) OF SECTION 114

OF THE INDIAN ACT

Those regulations provided in detail how the schools were to be run and imposed upon the principal of each school the obligation to maintain standards acceptable to the Superintendent.

[22]        The Presbyterian Church joined with other churches to create the United Church in 1925.  From then on, the United Church was involved in the operation of AIRS in essentially the same way that the Presbyterian Church had been but with some change in the arrangements over the years.  In the early period, the Church seems to have played the major role in the day-to-day management of the school with Canada’s active role being largely confined to providing funds but there was, from 1948 on, a steady and significant increase in the exercise of control by Canada.  For instance, until 1948, the Church hired all employees.  After that, Canada hired the teaching staff at AIRS.  The 1953 regulations enacted under s. 114(a) of the prevailing Indian Act had the effect of significantly increasing the control exerted by Canada over residential schools across the country.  That control was further increased in 1960 when an Indian Affairs Branch Field Manual was put in effect.  In the late 1950s, Canada initiated discussion with the various churches involved with residential schools, directed towards creating a standard form of contract between the Crown and the religious institution.  As a result, such a contract was entered into between Canada and the United Church regarding AIRS in 1962.  In 1969, Canada assumed complete control over AIRS, and from then until the institution was closed in 1973, it was used only for residential purposes with the children attending public schools in Port Alberni during the day.

[23]        Of the six cases in which Plint was found liable, only one arose in his first period in the school.  That involved a relatively minor sexual assault on the plaintiff, R.J.J., who was awarded non-pecuniary and aggravated damages of $20,000.00 as well as $3,000.00 in punitive damages against Plint.  Canada appeals on the ground that the assaults occurred before May 14, 1953, and, thus, at a time when Canada could not be sued for the torts of its servants.

[24]        The other case which arose in the 1950s was that of M.J. who alleged that she was sexually assaulted on a number of occasions by Mr. Caldwell, the principal, and Mr. Peake, a dormitory supervisor.  The assaults by Peake were said to have occurred in about her third year at AIRS when she was about eight years old, and those by Caldwell when she was older.  She appeals from the dismissal of her action, a decision based essentially on questions of credibility.

The Issues Between the United Church and Canada

[25]        The issues between these two defendants are:

(1)   whether the trial judge erred in holding the Church jointly liable with Canada for the wrongs done by Mr. Plint, and

(2)   whether, if the United Church is jointly liable, the judge erred in apportioning the “fault” or “responsibility” 75% against Canada and 25% against the Church rather than 50% against each. 

The first issue is the subject of the Church’s appeal against Canada and the second is the subject of Canada’s cross-appeal against the Church.

[26]        The first phase of the trial, which took place on some 18 days in February through April 1998, was confined to the issue of vicarious liability.  The trial judge, on the application of Canada and over the opposition of the Church, directed that issue to be tried as a preliminary one which he defined as:

Are the Defendants Her Majesty the Queen and/or the Defendant United Church of Canada vicariously liable for the sexual assaults committed by the Defendant Arthur Henry Plint against each of the Plaintiffs while those Plaintiffs were students at Port Alberni Indian Residential School, which sexual assaults are set out in the Statement of Claim?

By that stage, Plint had been convicted in the criminal courts of sexual assault on a number of the plaintiffs.  On that basis, Canada and the Church admitted, for the purposes of this action, that the acts were committed as alleged.

[27]        On June 4, 1998, the first set of reasons for judgment was delivered holding that Canada and the Church were jointly liable for the assaults by Plint on the basis of vicarious liability.  That concluded the first phase of the trial.  The second phase, which dealt with all other issues, began in August 1998 but, after a few days, was adjourned for a lengthy period.  The third phase covered damages.  The trial did not conclude until December 2000 with the second set of reasons for judgment being delivered on July 10, 2001.  The final set of reasons consists of 935 paragraphs and covers some 150 pages of the B.C.L.R. report.  The structure of the reasons can best be gathered from the index which appears at the beginning of the original reasons but is not reproduced in the reported version.  I will therefore set out the index here:

INDEX                                                PARAGRAPH NO.

Introduction............................................ [1]

Nature of the Evidence.................................. [4]

The Appropriate Standard................................ [10]

The Evidence of Sexual Assaults

Frederick Leroy Barney............................ [18]

R.F............................................... [22]

R.[J.]J........................................... [31]

M.J............................................... [38]

D.S............................................... [57]

M.W.(1)........................................... [61]

M.W.(2)........................................... [65]

Negligence.............................................. [66]

Did the Church and Canada owe a duty.............. [68]

of care to the plaintiffs?

Decision: Policy or Operational?.................. [71]

The Standard of Care.............................. [80]

Actual Knowledge.................................. [92]

Constructive Knowledge............................ [133]

Were reasonable steps taken?...................... [207]

Conclusion re: claims in negligence............... [228]

BREACH OF FIDUCIARY DUTY................................ [233]

NON DELEGABLE STATUTORY DUTY............................ [249]

DID CANADA BREACH ITS STATUTORY DUTY?................... [256]

LIMITATION DEFENCES..................................... [260]

THIRD PARTY CLAIMS ..................................... [282]

ALLOCATION OF FAULT..................................... [319]

DAMAGES

Introduction...................................... [327]

Evidence Issues................................... [337]

Causation......................................... [360]

General........................................... [398]

Expert Evidence - General......................... [416]

ASSESSMENTS

Frederick Leroy Barney............................ [423]

R.F............................................... [536]

R.[J.]J........................................... [602]

M.J............................................... [661]

D.S............................................... [742]

M.W.(1)........................................... [768]

M.W.(2)........................................... [858]

COURT ORDER INTEREST.................................... [925]

COSTS................................................... [926]

SUMMARY................................................. [927]

[28]        It will be seen that the analysis of the evidence on liability is set out separately from that on damages.  A somewhat unusual feature of the trial was that the trial judge, on the application of the plaintiffs, directed that the evidence on liability be heard separately from that on assessment of damages.  As a result, the plaintiffs gave evidence twice, with the two hearings being separated by many months.  An exception was the plaintiff, R.J.J., who, for medical reasons, was excused from giving evidence at the second phase, subject to certain agreements on proving facts.

The Church’s Appeal

[29]        As already noted, Canada’s position in this court is fundamentally different from that which it took at trial where it sought to establish that the agreements between the Church and Canada and the practice followed by them in operating AIRS demonstrated that the Church has assumed responsibility for all aspects of the operation and that it was, therefore, the sole employer of Plint.  The trial judge analyzed in detail the facts relevant to that contention in paras. 72-103 of the first reasons.  Those passages demonstrate that Canada, during the relevant period, exercised a high degree of control over virtually all aspects of the operation of AIRS which, of course, existed and was operated for the purpose of carrying out Canada’s statutory obligations.  The trial judge summarized his reasons for rejecting Canada’s position that it should not be held vicariously liable as follows:

[104]  I conclude that Canada did not effectively transfer all aspects of the operation of AIRS to the Church under the agreements and the practice both parties followed.  Canada did not limit its communi­cations to the Church with the expectation that the Church would take whatever steps it considered appropriate to forward these on to the principal at AIRS.  Rather it is clear that Canada issued many instructions regarding the operation of AIRS directly to the principal.  This is inconsistent with the purported transfer of all management responsibility to the Church as set out in the 1911 and 1962 agreements. Simply put, what the agreements say was not what the parties put into practice.

[30]        I agree with the conclusion stated in that paragraph but do not agree that there was any significant inconsistency between what the agreements say and what was done in practice.  For one thing, I do not read the 1962 agreement as having purported to transfer all management responsibility to the Church.  It is true that it described the Church as “the Management” but it went on to provide that:

2.    The Management shall

(a)   operate and manage the school in accordance with such rules, regulations, directives and instructions that may be made or issued by the Minister from time to time,...

[31]        The later agreement also provides for the Management to “nominate” a person for appointment as principal or officer-in-charge with the qualification that no person “shall be appointed principal by the Management without the prior approval of the Minister in writing.”  The 1962 agreement has many clauses providing for the Minister to retain detailed control over the operation.  Two examples illustrate the point.  Clause 11(5) provides that, where a pupil is suspended, it is for the Minister to decide if the pupil could be returned.  Clause 26(3) gives the Management power to suspend a member of the teaching staff but, where that occurred, “... the Minister shall determine what action is to be taken.”

[32]        It is a matter of some significance that, in what would seem to have been the only instance during the relevant period when the relationship between Canada and the employees of the residential schools was the subject of legal proceedings, Canada firmly and successfully took the position that the employees were employees of the Crown.  In 1966, an issue arose at a residential school owned and operated by the Oblate Brothers as to whether the domestic employees were employees of the Brotherhood or of the Crown.  In its submission to the Canada Labour Relations Board, Canada said:

The authority to build and operate schools for Indian children belongs to Parliament under  principal (24) of s. 91 of the British North America Act which gives Parliament jurisdiction over ‘Indians and Lands Reserved for the Indians’.  Parliament has exercised this power in s. 113 of the Indian Act which authorizes the Minister to establish, operate and maintain such schools and, with the approval of the Governor in Council to enter into agreements with various governmental bodies or religious organizations for the education of Indian children.

It is, therefore, the Minister who possesses the absolute legal authority to construct and operate these schools.  The Minister could, if he had wished, have had these schools built and operated by the Department, but for various reasons he has instead made agreements with a number of religious organizations to operate these schools for him.

[33]        In its decision of September 7, 1966, the Board said: 

      Please take notice that following investigation and the review of the evidence and argument adduced on behalf of the parties concerned in the above-cited application at the hearing on July 19, 1966, the Board reached the conclusion that the respondent Oblate Fathers operated and manage the Fort Frances Indian School in which the employees in the proposed bargaining unit are employed as agent for the Minister of Northern Affairs and National Resources and that these employees are employees of Her Majesty in right of Canada and consequently having regard for the provisions of Section 55 of the Industrial Relations and Disputes Investigation Act, the provisions of Part I of the said Act do not apply.

[34]        That finding, in my view, is entirely consistent with the language of the 1962 agreement and was consistent with the actual practice in respect of management and operation of the school.  The day-to-day operation was supervised by the Church.  In the case of AIRS, the person who appears through most of the relevant period to have been in regular touch with the principal with respect to day-to-day matters was the Reverend Joblin whose office was in the United Church’s Board of Home Missions situate in Toronto.  He consulted frequently with the principal.  The trial judge, in coming to the conclusion that there was an element of “partnership” or “joint venture” between Canada and the Church which rendered the Church jointly liable, emphasized the fact that the only principal who survived to give evidence (Mr. Andrews) considered Reverend Joblin to be his “boss”.  The major reason in Andrews’ mind for coming to that conclusion seems to have been that Reverend Joblin “hired me” and that he presumed Reverend Joblin could also “have fired me”.

[35]        In response to this, Mr. Hinkson, counsel for the Church, makes the point that Andrews’ view of the matter amounted merely to a belief or impression as to who was his “boss” and that, as Mr. Justice Iacobucci, speaking for the court in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at 761, said, “But simply to state that something is believed does not guarantee that it is so,...”  I see some merit in that submission.

[36]        More to the point, the fact that Reverend Joblin was Principal Andrews’ boss, which in some sense he was, does not establish that the Church, which undoubtedly was Joblin’s employer, was the employer of Andrews, Plint or the other employees of AIRS.  That conclusion could properly follow only were it to be established that Joblin, in his dealings with Andrews, was acting only for the Church.  No doubt, in supervising the principal in relation to some matters, e.g. religious instruction, Joblin was doing the will of the Church.  But for the most part, in supervising and directing Andrews, Joblin was performing on behalf of Canada functions which were fundamentally those of Canada.  To put it somewhat differently, because of the arrangements made between Canada and the Church, it fell to an employee of the Church (Joblin) to act as the boss of Canada’s employee (Andrews).  In substance, as the Canada Labour Relations Board held in the 1966 case, the Church and its employee, Reverend Joblin, acted as the agent of Canada in providing supervision and management of Canada’s school.

[37]        That view of the matter is entirely consistent with the finding of the trial judge in para. 104 of his June 1998 reasons.  The practice actually followed was, in many respects, well calculated (I do not say intended) to give the impression that the Church’s part in the operation of the school was more significant than it was in fact.  Looking at the matter from the point of view of Mr. Andrews, it was Reverend Joblin with whom he was in touch to obtain employment as principal.  The practice with respect to wages and other operating costs was that the funds were sent to the principal by the Board of Home Missions in Toronto to be deposited into a local account from which payment would be made of salaries and other outgoings.  But the funds were provided to the Board of Home Missions by Canada.  Canada effectively controlled the appointment of the principal and, although the matter seems not to have arisen, a principal surely could not have been dismissed without authorization by Canada.

[38]        One final point which I make with respect to the 1962 agreement is that the only matter in respect of which the Church’s discretion was not closely fettered by Canada’s authority to make rules and decisions was in clause 3 which reads:

The Management may

(a)   provide for the spiritual and religious welfare of the pupils enrolled in the school, and

(b)   include in the time-table for classroom instruction a period of not more than one-half hour a day for religious and spiritual instruction.

[39]        In this court, the Church submits that the trial judge, having correctly found that Plint was an employee of Canada so as to render Canada vicariously liable for his torts, erred in concluding that the Church, because it played a part in the management of AIRS, was also an employer of Plint.  The submission is that the trial judge lost sight of the question raised by the preliminary issue which was whether “Canada and/or the Church” were vicariously liable for Plint’s sexual assaults.  That submission has some merit.  Plint’s occupation, that of dormitory supervisor, was not directed at providing “Christian education”.  His position would have been essential to the operation of the residential school had there been no religious component.

[40]        There appears, except in cases of true partnership, to be very little precedent for holding more than one person jointly vicariously liable for the tort of an employee.  The trial judge gave considerable weight to the only case of that kind which was drawn to his or our attention.  That is the decision of this court in Sinclair v. Dover Engineering Services Ltd. (1988), 49 D.L.R. (4th) 297 (B.C.C.A.), upholding the trial decision, (1987), 11 B.C.L.R. (2d) 176 (S.C.).  The action was brought against two closely associated companies, Dover Engineering Services Ltd. and Cyril Management Ltd., for damages for wrongful dismissal.  The circumstances of the case, and the basis for the decision, were summarized thus in the headnote (D.L.R. 297-298):

      An employee entered into an employment arrange­ment involving two companies, D. Ltd. which appeared to the public to be the employer, and C. Ltd. which actually paid his salary and appeared in related documents as the employer.  The plaintiff, being dismissed, brought an action for wrongful dismissal against both companies, and succeeded at trial.

      On appeal to the British Columbia Court of Appeal, held, dismissing the appeal, the employment contract was with both companies, both of which exercised control over the employee and his affairs.  Consequently, both were liable to pay damages for wrongful dismissal.

[41]        In my view, the factual situation and the issues in that action were sufficiently different from those in the case at bar as to render the decision of little assistance.  The relation­ship between the two defendants in that matter bore little resemblance to that between these two defendants.  Furthermore, the issue of damages for wrongful dismissal gives rise to considerations quite different from those which apply to vicarious liability.

[42]        In any event, in relation to vicarious liability, there have been significant developments in the law since the judgment under appeal was handed down.  As a result, it appears that the fact that the Church is in the category of a non-profit charitable organization is one which weighs in favour of not imposing vicarious liability upon it in circumstances where, as in this case, the injured party can make full recovery from Canada.  I find support for that view of the matter in certain of the policy considerations taken into account by the Supreme Court of Canada in what is now the leading decision in this area, i.e., Bazley v. Curry, [1999] 2 S.C.R. 534, in which judgment was delivered after the trial decision in this case on the issue of vicarious liability.

[43]        At issue in Bazley v. Curry was whether The Children’s Foundation, a non-profit organization which operated residential care facilities for the treatment of emotionally troubled children, should be held vicariously liable for the sexual assaults perpetrated by Curry, a paedophile who was employed by the Foundation to work with the children in its home.  Curry had used his position to assault children in his care.  The parties stated a case to determine whether, assuming that the appellant was not at fault, it should be held vicariously liable for the deliberate tort of its employee.  The chambers judge found in favour of the plaintiff, and this court dismissed the appeal.  The Supreme Court of Canada upheld that decision.  The reasons were those of McLachlin J. (as she then was) for the court.

[44]        In dismissing the appeal, the Supreme Court considered whether there should be an exception for non-profit organizations.  McLachlin J. outlined the appellant’s first submission in this passage:

[49]  The first submission is that it is unfair to fix liability without fault on non-profit organizations performing needed services on behalf of the community as a whole.  It is difficult not to be sympathetic to this plea. Churches and aid societies undertake to care for society’s most needy.  They do work few others would, and they do it in a selfless, generous manner.  In the case at bar, the Children’s Foundation took in the respondent when no one else seemed ready or able to do so and undertook the difficult task of providing him with the love and guidance that other children receive from their parents.  That non-profit organizations do important work is beyond question.  They are funded by the government and by donations from the public.  It is unjust, the appellant argues, that they be made to pay damages when, through no legal fault of their own, an unscrupulous employee or volunteer abuses his position with one of the wards.

[45]        In rejecting that submission, McLachlin J. emphasized that the competing perspective in that case was that of the innocent child who was the victim of the abuse and went on to say:

[50]  ... From his perspective, the appellant’s institution, however meritorious, put him in the intimate care of Mr. Curry and in a very real sense enhanced the risk of his being abused.  From his perspective, it is fair that as between him and the institution that enhanced the risk, the institution should bear legal responsibility for his abuse and the harm that befell him....

[46]        In para. 52 of her reasons, McLachlin J. considered and rejected the appellant’s second argument which was to the effect that, because non-profit charitable organizations often work with volunteers, they are less able than commercial enterprises to supervise their agents.  That point is not relevant here.

[47]        The disposition of the third argument, however, has some relevance.  It was dealt with in paras. 53-55 which I quote:

[53]  The third argument, essentially a variation on the first, is that vicarious liability will put many non-profit organizations out of business or make it difficult for them to carry on their good work.  It is argued that unlike commercial organizations, non-profit organizations have few means of distributing any loss they are made to assume, since they cannot increase what they charge the public and cannot easily obtain insurance for liability arising from sexual abuse.  While in this case, it may be that the loss can be distributed to the public (since the province pays the Foundation for caring for children like the respondent), many non-profit organizations may have no way to obtain contribution from other sources to cover judgments against them.  In sum, attaching liability to charities like the Foundation will, in the long run, disadvantage society.

[54]  I cannot accept this contention.  It is based on the idea that children like the respondent must bear the cost of the harm that has been done to them so that others in society may benefit from the good work of non-profit organizations.  The suggestion that the victim must remain remediless for the greater good smacks of crass and unsubstantiated utilitarianism.  Indeed, it is far from clear to me that the “net” good produced by non-profit institutions justifies the price placed on the individual victim, nor that this is a fair way for society to order its resources.  If, in the final analysis, the choice is between which of two faultless parties should bear the loss – the party that created the risk that materialized in the wrongdoing or the victim of the wrongdoing – I do not hesitate in my answer.  Neither alternative is attractive.  But given that a choice must be made, it is fairer to place the loss on the party that introduced the risk and had the better opportunity to control it.

[55]  Finally, it seems to me artificial to suggest that Bazley could have claimed against the government because, by making the initial placement order, it was the cause-in-fact for Curry’s torts.  The connection between the original government order and the sexual abuse is too remote to support liability.

[48]        The reference in para. 53 to the absence of any basis for holding “government” liable in that case leaves open the argument that, in a case where the government is liable and in which the non-profit charitable organization is not at fault and, if it can be said to have introduced the risk at all, did so to a lesser degree than government, no liability should be imposed upon the organization.  Thus, the unfairness referred to in para. 49 of Bazley and the unattractive alternative adverted to in para. 54 can be avoided.  There is no need to make a choice between the innocent victim and the non-profit organization.

[49]        Here, the Government of Canada is admittedly liable for the wrongs done by Plint.  The contest is between Canada and the Church, which voluntarily cooperated in the operation of the School that Canada, by statutory mandate, was required to maintain.  These are matters which, in my view, can be taken to support the conclusion that the Church should not, in this case, have been held liable for the wrongdoings of Mr. Plint even if there is some merit to be found in the contention that it was, in some degree, his employer.

[50]        It follows that I would allow the appeal of the Church and dismiss the actions against it.

Crown Appeal – Liability Issues

[51]        The Crown has appealed four aspects of the trial judgment, three of which relate to liability issues and the fourth to the question whether the judgment against Canada should have included aggravated damages.  At this point in my reasons, I propose only to deal with the three issues relating to liability, which are:

(1)   whether the trial judge erred in law in holding that Canada had a non-delegable statutory duty to the plaintiffs and breached that duty;

(2)   whether the trial judge erred in apportioning liability 75% against Canada and 25% against the Church, rather than directing an equal division of liability;

(3)   whether the trial judge erred in finding Canada liable to the plaintiff R.J.J. for sexual assaults committed against him prior to May 14, 1953, before which date there was no jurisdiction to sue the Crown for torts of its servants.

[52]        I would dismiss the appeal on the first two of those three issues on the ground that they are now essentially academic.  That is so with respect to the apportionment issue because, for the reasons I have given, I would dismiss the action against the United Church.

[53]        I therefore prefer to reach no conclusion on the question whether the trial judge erred in law on the second issue.  The point made by Canada is that, where two defendants are held jointly liable in tort on a ground such as vicarious liability which is not based on fault, each defendant is liable to the plaintiff for 100% of the damages (as the trial judge found) but that the defendants, as between themselves, are each liable for one-half of the total burden.  It is in failing to accept the latter proposition that the judge is said to have erred.  I will add only that Canada advanced some persuasive submissions in support of that position but that the point is not without its difficulties.

[54]        The issue of non-delegable duty arose in this way.  The trial judge, having in his first reasons found both defendants liable on the basis of joint vicarious liability, went on in his second reasons to hold that Canada was also liable on the basis of a “statutory non-delegable duty”.  Canada advances a number of grounds in support of its contention that, in the circumstances of this case, no such duty can arise.

[55]        Its principal submission is that the present law in this province is that vicarious liability and non-delegable duty are mutually exclusive concepts – that vicarious liability applies where the employer is sought to be held liable for the tort of its servant and non-delegable duty applies in a similar way to independent contractors.  There has been a considerable division of opinion in this and other courts on that question.  The two cases which Mr. Taylor contends stand for the “mutually exclusive” approach are included in the trilogy of decisions from this court which, at the time of hearing argument in this case, were on reserve to the Supreme Court of Canada and have since been released (see pages 61-62 of these reasons).  The two cases are G.(E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89 (S.C.), aff'd. (2001), 86 B.C.L.R. (3d) 191, 2001 BCCA 226 (2003 SCC 52); and K.L.B. v. British Columbia (1998), 51 B.C.L.R. (3d) 1 (S.C.), varied (2001), 87 B.C.L.R. (3d) 52, 2001 BCCA 221 (2003 SCC 51).

[56]        In those circumstances, it would, in my view, be inappropriate for this court to render a decision on the point where it is not necessary to do so in order to decide the appeals.  The issue is essentially moot in this case.  As a result of the trial of the preliminary issue, the trial judge decided that both defendants were liable on the basis of vicarious liability.  Canada now accepts that it is liable on that basis.  No useful purpose would be served by further discussion of non-delegable duty.

[57]        As a matter of interest, however, I will mention that the issue of non-delegable duty was referred to in the decision of this division pronounced on May 15, 2003, in one of the other appeals heard with these appeals:  E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia (2003), 14 B.C.L.R. (4th) 99, 2003 BCCA 289.  Mr. Justice Hall, for the court, in his discussion of vicarious liability, which was the ground for liability at trial in that case, referred to non-delegable duty in paras. 18-19 of his reasons and, at the end of para. 18, quoted from the majority judgment of Mackenzie J.A. in G.(E.D.) v. Hammer, supra, the passage which Canada relies on as setting out the present law in this province.

[58]        I turn then to Canada’s appeal seeking to set aside the judgment in favour of R.J.J. and to dismiss his action.  R.J.J. was awarded $20,000.00 non-pecuniary and aggravated damages based on a finding that he had been subjected to sexual abuse by Plint on a number of occasions during the period from 1949 to 1959 when he was a student at AIRS.

[59]        The appeal is based on the fact that it was not until the Crown Liability Act, S.C. 1952-53, c. 30, was enacted on May 14, 1953, that the Crown in right of Canada became liable for torts committed by a servant of the Crown.  The relevant section was:

3. (1)  The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable

(a)   in respect of a tort committed by a servant of the Crown,...

Section 24(1) of the Act expressly provided that the amendment was not to be given retroactive effect.  It reads:

24. (1)  No proceedings shall be taken against the Crown under this Act in respect of any act, omission, transaction, matter or thing occurring or existing before the day on which this Act was assented to.

[60]        The trial judge made no reference to this issue in his reasons and made no finding as to the precise dates of the sexual assaults.  R.J.J. testified as to one assault during his first year at the school and two other assaults during his “early and middle years” there.  In contending that the assaults must have taken place before the lifting of Crown immunity, Canada relies on the judge’s finding that Plint’s first tenure at AIRS was from about 1948 to 1953 and upon a passage in the evidence of Plint which seems to say that he may have left AIRS to go to work in the post office as early as 1952.

[61]        On the other hand, counsel for R.J.J. and the Church point to evidence, some of it from Plint, which seems to say that he was still at AIRS in 1954 and 1955.

[62]        Counsel for Canada says that the issue was raised before the trial judge "during argument" which I take to mean during final submissions.  The more important consideration in my view is that the matter was not raised in the pleadings.  In the fourth further amended statement of claim, delivered in 1999, which was the pleading upon which the case went to trial, it was alleged that:

61.   Beginning in or about 1949 and continuing until approximately 1959, R.J.J. was a student in residence at the School.  During this time he was repeatedly assaulted, sexually and physically, by Plint.

There followed extensive particulars of the nature of the assaults and the damage done thereby.  

[63]        The relevant paragraph in the amended statement of defence reads thus:

38.   In answer to paragraph 61 of the Amended Statement of Claim, she [H.M.T.Q. in right of Canada] says that the Plaintiff R.J.J. attended the School from at least September 1949 to September 1955 and March 1959 to June 1959.  She has no knowledge and does not admit that the Plaintiff R.J.J. attended the School from October 1955 up to March 1959.  Further, she has no knowledge and does not admit the other allegations of fact set out.

[64]        In my view, the basic principles of pleading required that Canada, if it wished to allege its immunity from suit in relation to assaults taking place before May 14, 1953, plead that allegation.  Throughout the pleadings, the evidence and the reasons for judgment, the dates upon which assaults took place were dealt with in a vague and indefinite fashion.  Given the number of years that had gone by, that was under­standable and in most cases was a matter of little significance.  The case of R.J.J. may have been the only one in which the dates assumed critical importance.  The burden was on Canada to allege this positive defence - had that been done, it is likely that more precise evidence could have been adduced.

[65]        It is of some interest that Canada did properly plead in its statement of defence the somewhat related defence of limitation with respect to causes of action other than sexual assault.  That became a matter of significance because, as the trial judge held in paras. 263-279 of the second set of reasons, it was not open to the plaintiffs, who did not in their reply allege facts which might have given rise to a postponement, to assert that ground of relief from the statute of limitations.  Similarly, it is not now open to Canada to rely on the issue of immunity to suit before May 1953 as if the matter had been properly pleaded and the facts proven.  We do not know whether the trial judge overlooked the argument which it is said was put forward.  Whether he did or not, there was evidence from which it could be concluded that there were assaults after May 1953.  In all the circumstances, I would deal with the matter on that basis and would dismiss the appeal against R.J.J.

Appeal by Plaintiffs on Liability Issues

[66]        The liability issues raised by the plaintiffs in these appeals are:

(a)   all plaintiffs appeal against the dismissal of their allegations of negligence against the defendants;

(b)   all plaintiffs appeal against the dismissal of their allegations of breach of fiduciary duty by the defendants;

(c)   all plaintiffs assert that the trial judge erred in failing to award damages for loss of native language and culture arising from their attendance at AIRS;

(d)   the plaintiffs, M.J., R.J.J., R.F. and L.B. assert that they were unfairly limited in giving evidence during the damages phase of the trial;

(e)   the plaintiff, M.J., appeals against the dismissal of her action.

[67]        The trial judge summed up the allegations of negligence in his second set of reasons as follows:

[67]  The following issues arise from the negligence pleadings:

a)    Did the Church and/or Canada owe a duty at law to the Plaintiffs in connection with the allegations raised in the pleadings. If so the following must also be considered:

b)    Did the Defendants, or either of them, have actual knowledge of the occurrence of sexual abuse at the AIRS;

c)    Did the Defendants, or either of them, have constructive knowledge of the fact that the Plaintiffs were being sexually abused; i.e. should they have known;

d)    If the Defendants, or either of them, knew or should have known that the Plaintiffs were being sexually abused, what steps should reasonably have been taken;

e)    If reasonable steps had been taken, would those steps have prevented the occurrence of the sexual assaults.

[68]        After finding that both defendants owed a duty of care to the plaintiffs, the trial judge went on to consider the standard of care applicable to these cases.  He summed up his conclusions on that matter as follows:

[91]  So in cases involving claims of sexual assault the trier of fact must take care to assess the standard of care in accordance with the standards of the day prevailing at the time of the offences. Since there is no limitation period in this province for torts of a sexual nature, this can require a somewhat lengthy look backward in time. Above all it is essential in cases of historical sexual assault that the standard not be assessed using hindsight or by referring to more contemporary standards.

[69]        He then turned to a detailed examination of the evidence bearing on the question whether those in charge of AIRS at the material time had actual knowledge of sexual assaults and concluded as follows:

[132]  However on the whole of the evidence taking into account the passage of time since these events are said to have occurred and bearing in mind that the plaintiffs carry the burden of proof on this issue, I am simply unable to conclude that it is more probable than not that any reports of the sexual assaults were communicated to Mr. Andrews or any of the other AIRS employees prior to Plint being fired.

[70]        He then went on to consider, at very considerable length, the evidence touching upon the question of constructive knowledge.  He took into account the evidence of various plaintiffs, including those who had settled before judgment, the evidence of witnesses employed at the AIRS and the evidence of those employed in the public school system, which evidence he found to be relevant to the issue of community knowledge.  His final conclusions with respect to the negligence issue were stated thus:

[228]  I conclude that both Canada and the Church did owe a duty of care to the plaintiffs with respect to the matters raised by the allegations in these actions. I also conclude that the plaintiffs have failed to establish that either Canada or the United Church had actual knowledge of the sexual assaults being committed upon these plaintiffs.

[229]  I conclude that the evidence does not establish that, aside from the perpetrators themselves, other adults employed at the AIRS, including the principals, had actual knowledge of the occurrence of these sexual assaults. As a result, the evidence is insufficient to prove that these defendants should have known that these sexual assaults were occurring.

[230]  The assaults were carried out in secret. Some of the children thought that they were the only boys being assaulted. Others, themselves victims of sexual abuse, did not suspect that that sort of behaviour carried on after the period of their own abuse. Even some parents, when faced with specific reports from their own children that they were being sexually abused, did not conclude that the abuse was a reality. While there was evidence of some rare instances of sexual abuse in other residential schools, those instances were, in the manner of the day, considered to be isolated occurrences rather than evidence of any systemic problem.

[231]  Even if it could be said that the defendants or either of them knew or should have known of the occurrence or risk of these sexual assaults, there is no evidence as to the preventative steps which ought reasonably to have been taken, during the period in question to address the possibility of these sexual assaults.

[232]  Accordingly I conclude that the plaintiffs have failed to discharge the onus of proof in support of their allegations in negligence against Canada and the Church. These claims must therefore be dismissed.

[71]        In reaching those conclusions, the trial judge placed strong emphasis on the difficulties created by the extreme passage of time and the great change which took place after the happening of those events in societal attitudes to such matters.  With respect to those aspects of the evidence, he said:

[134]  On the undisputed evidence in this case one might think that it would be virtually impossible for the fact that children were being subjected to abuse at AIRS not to have become known in the wider community and hence by the defendants.

[135]  However when the evidence is examined closely, one is drawn to the conclusion that the unspeakable acts which were perpetrated on these young children were just that: at that time they were for the most part not spoken of.  Although today we may find such reticence astonishing, a court when assessing liability must take care to ensure that conduct is measured fairly having regard to the context of the particular time.

[72]        The judge’s conclusions in this area were based upon his overall assessment of a huge body of evidence.  He did not refer to all of it – it would have been wholly impractical to do so.  The appellants say that the trial judge accepted and gave effect to evidence which was manifestly unreliable and did not give effect to evidence which they submit was manifestly reliable.  These submissions, advanced with great zeal and ability, amount, in the end, to an invitation to re-try the case.  Since I am not persuaded that any error has been demonstrated in the judge’s conclusions on negligence, I would dismiss the appeal against his refusal to find any negligence on the part of either defendant.

[73]        The trial judge dealt more briefly in paras. 233-248 of his second set of reasons with the allegation of breach of fiduciary duty.  He summed up his conclusions as follows:

[246]  To find a breach of fiduciary duty there must be conduct that is dishonest or is perpetrated for personal advantage in a relationship of trust and confidence. On the evidence in the case at bar is this what either Canada or the Church really did?

[247]  In my view the answer is “no”.  There is simply no evidence of dishonesty or intentional disloyalty on the part of Canada or the United Church towards the plaintiffs which would make it permissible or desirable to engage the law relating to fiduciary obligations.  I include in this conclusion the more general complaints of the plaintiffs relating to linguistic and cultural deprivation.  In my view the plaintiffs have failed to demonstrate that either Canada or the Church were acting dishonestly or were intentionally disloyal to the plaintiffs.

[248]  That is not to suggest that the Indian Residential School policy in this country was not flawed.  Many have concluded retrospectively, with ample justification, that the policy was badly flawed.  However even a badly flawed policy does not necessarily equate to a breach of fiduciary duty in law.  It is only when the flawed policy contains within it the necessary indicia of dishonesty or disloyalty that the breach of fiduciary cause of action is engaged.  Such indicia with respect to Canada or the Church is simply not present in the case at bar.

[74]        The test which he applied in so concluding was essentially that stated by Chief Justice McEachern in C.A. v. Critchley (1998), 166 D.L.R. (4th) 475, 60 B.C.L.R. (3d) 92 (C.A.).

[75]        A five judge panel sat on these appeals because, as I understand it, it was thought that we might be called upon to overrule that statement of the law.  I see no reason in law for disagreeing with Chief Justice McEachern’s analysis but, in any event, cannot regard this as the proper case to embark on a close examination of that interesting issue.  Having regard to the trial judge’s findings of fact in relation to the negligence allegations, I am of the view that the facts of this case could not meet the most liberal definition of breach of fiduciary duty.

The Appeal by All Plaintiffs Respecting Claim for Loss of Native Language and Culture

[76]        All of the seven remaining plaintiffs have advanced in this court a claim for damages flowing from loss of their native language and culture as a consequence of being required to attend the residential school and by the rules and treatment to which they were subjected while there.  In this endeavour, they are supported by the intervenor, Nuu-Chah-Nulth Tribal Council.

[77]        No such claim was advanced in the pleadings of the plaintiffs save as a particular of damage alleged to have flowed from other torts.  An example of such a pleading, taken from the statement of claim of Mr. Blackwater, one of the plaintiffs who settled before judgment was given, is as follows:

33.  As a result of the breach of fiduciary duty and negligence on the part of the Minister or the Church or both of them, and the breach of fiduciary duty, negligence, assault and battery on the part of Andrews, and the breach of fiduciary duty, assault and battery on the part of Plint, Willie Blackwater suffered and continues to suffer damages which include, but are not limited to the following:

* * *

b)    loss of his aboriginal language and culture and his family roots;

The pleadings of the appellants on this point are similar.

[78]        The manner in which the argument was framed in this court appears in this passage in the factum of Mr. Paterson on behalf of P.D.S.: 

e)  Cultural Loss

42.   One of the goals of the residential school system from its inception was the assimilation of aboriginal children to the majority culture.

43.   As part of this policy of assimilation, the children at AIRS were punished if they spoke their own language.

44.   In addition to the use of racial epithets and outright denigration of aboriginal people by the staff, the children were taught that being an aboriginal person was something to be ashamed of.

45.   Some of the plaintiffs found they no longer knew, or could no longer communicate with their families when they were finally allowed to go home.

46.   The Church admitted students attending the residential schools suffered the loss of their native languages and that their native spirituality was discounted and undermined by the policies and practices of the Church and Canada.  The Church also agreed that loss of language and native spirituality constituted cultural abuse of the students in the school.

[79]        At other points, the appellants submitted that the abusive treatment of the children in residential schools, and their alienation from their parents and the native community generally, should be treated as an aggravating factor in fixing aggravated damages for the sexual abuse.  That approach was presumably taken in an attempt to bring the matter of loss of language and culture within the scope of damages for sexual abuse, but it is clear that the basis for the claim is essentially an attack upon the system of residential schools and its overall effect on all students.  The attempt to link that subject to sexual abuse, the only cause of action in respect of which in this province there is no limitation, is strained at best.

[80]        The trial judge held that all claims other than those based upon sexual abuse were statute barred.  In paras. 268-275 of his reasons, he pointed out that the elapsed time from the attendance of any of the plaintiffs at AIRS to the issuance of the first writ in 1995 was beyond the thirty year ultimate limitation in the Limitation Act, R.S.B.C. 1979, c. 236, and that no facts which would support a finding of postponement had been pleaded or proved.

[81]        The appellants take no issue with that finding but, in this court, they seek to take the position that no limitation period applies to such a claim and that, to the extent the Limitation Act purports to have that effect, it is unconstitutional.  A notice of constitutional question was filed prior to the hearing in this court.

[82]        In my view, it is not open to the plaintiffs to raise these issues at this stage.  They say that they are not seeking to advance loss of culture and language as an independent cause of action, but that is clearly the substance of what they seek to do.  That might have been done by an appropriate pleading before trial to which the defendants no doubt would have pleaded the Limitation Act and the plaintiffs would have responded by raising the constitutional issue.  I agree with counsel for Canada that, as matters stand, this court cannot properly entertain these issues.  I would dismiss this ground of appeal. 

Appeal of M.J., R.J.J., R.F. and L.B. on ground that they were unfairly limited in giving evidence 

[83]        This issue arises from the trial having been conducted in three phases.  These appellants, who gave evidence in the first phase as to the frequency and severity of sexual assaults which they alleged were committed upon them, sought to give further evidence in the third phase on that subject.

[84]        The issue arose when Mr. Blackwater, who is the first plaintiff named in the first statement of claim and who gave his name to these proceedings as a whole, was testifying in the damages phase and his counsel asked him whether he recalled “anything that was done to [him] that [had] come to [his] memory since [his previous testimony]”.  Counsel for the defendants objected.  The question of the introduction of further evidence as to the assaults in the final phase of the trial led to extensive submissions and to a ruling by the trial judge delivered on November 3, 1999.  The submissions and the ruling were of general application to all of the then remaining plaintiffs.  The trial judge stated his conclusions in para. 6 of the ruling as follows:

After hearing counsel for the plaintiffs, I am concerned that these five [plaintiffs] may have chosen not to testify in the direct liability phase of the trial because of the reference in my reasons of June 4 to frequency and severity being issues for the damages phase of the trial.  While I have concluded that those plaintiffs who have already described to me the circumstances of the assaults on them while at AIRS ought not to repeat or elaborate on that evidence, I am of the view that the five plaintiffs who have not given any viva voce evidence about their assaults should not be precluded from telling me what happened if that is their wish.

[85]        The reference to the reasons of June 4 was to those delivered on June 4, 1998, dealing with the preliminary issue of vicarious liability, 161 D.L.R. (4th) 538, 52 B.C.L.R. (3d) 18 (S.C.).  In para. 13 of those reasons, the trial judge had stated:

The issue of the frequency and severity of the assaults will be dealt with during the damages assessment phase of this trial.  Accordingly in these Reasons I do not review the evidence given by the plaintiffs of the particulars of the assaults.

[86]        In the course of the November 3, 1999 ruling, the trial judge expressed the view that Mr. Blackwater and others had already “testified fully” as to the sexual assaults committed against them.  In this court, it is argued by the four plaintiffs who are the appellants on this issue that there was “no evidence” that the plaintiffs had testified fully and that they were, therefore, denied the opportunity to present full evidence as to the nature, frequency and severity of the sexual assaults.  They ask that the case be “remitted” to trial for the purpose of allowing these plaintiffs to testify on that matter.

[87]        The assertion that the trial judge could not conclude, without hearing evidence on the point, that these plaintiffs had testified fully is, in my view, without merit.  The trial judge had heard the evidence given by these appellants along with much other evidence.  Trials proceed on the assumption that, when a party or witness takes the stand, he or she will give all the evidence he or she intends to give before being turned over for cross-examination.  That is, of course, a flexible rule subject to infinite variations.  It is a matter for the discretion of the judge in the particular circum­stances.  In this case, the trial judge was faced with the situation of the defendants having called their case on liability during the first and second phases of the trial.  To allow the plaintiffs to give further evidence on that subject at that stage would, in the peculiar circumstances of this multi-phased trial, have offended the rule against splitting one’s case.

[88]        It is a matter of some interest, given the emphasis now placed on the suggestion that the plaintiffs should have been allowed to give more evidence on the nature and frequency of the assaults, to note that Mr. Grant, in his opening statement at the commencement of the third phase of the trial on November 1, 1999, stated: 

The issue before the Court is not the assaults and abuses per se, but rather, what were the damages suffered by each Plaintiff that are compensable by the Defendants?  The Plaintiffs submit that the nature and frequency of the assaults of each of the children is not the primary issue.  Whether a Plaintiff was orally or anally raped once or a dozen times is not the central issue.  What is central are the injuries and damages suffered by that specific Plaintiff as a result of those rapes and the circumstances under which they were allowed to be perpetrated.

[89]        I am not persuaded that the trial judge, who conducted these long and difficult proceedings with consummate fairness, erred in the exercise of his discretion by ruling that those plaintiffs who had already testified ought not to be permitted to testify further.

[90]        I would dismiss this ground of appeal.

The Appeal by M.J. Against Dismissal of her Action

[91]        M.J. was the only female plaintiff in these actions.  She based her case on allegations of sexual assault against the defendants Peake and Caldwell who were senior members of staff at AIRS.  The assaults alleged against Peake were relatively minor and took place in her early years at the school, which she attended from 1943 when she was five years of age until she was in her mid-teens, perhaps as late as 1955. 

[92]        Her allegations against Mr. Peake were that he rubbed his groin area against her and other female students.  The assaults alleged against Mr. Caldwell were very serious, involving M.J. being ordered by a matron to go to his living quarters, purportedly to clean them, but on a number of occasions for the purpose of his sexual gratification, including rape.  Those assaults, she said, took place in her latter years at AIRS.

[93]        In concluding his reasons on liability with respect to M.J., the trial judge said:

[55]  I do accept that Ms. [M.J.] holds an honest belief that the events that she described from so many years ago in fact occurred. I also recognize despite my findings of fact that one or more of the events may have actually occurred. I am also cognisant of the possibility that one or more of the events that she has described not only occurred but that it might have caused or contributed to her inability to communicate what happened with sufficient clarity that would have enabled me to reach a different conclusion.

[56]  However while I am aware of all of these factors, in the final analysis I am required to make findings of fact based on the evidence before me in accordance with the standard that the law requires. That analysis leads me to conclude that on all of the evidence I cannot find that it is more probable than not that these events occurred. In the result I have no alternative but to dismiss Ms. [M.J.]’s action. 

[94]        The appeal is based upon the submission that the reasons demonstrated, in several respects, palpable and overriding error involving misapprehension and overlooking of evidence and placing unreasonably unfavourable interpretations upon harmless discrepancies.  Most of those points amount essentially to submissions that we should retry the case, but one has sufficient substance to require that the dismissal be set aside and a new trial ordered.

[95]        That error arises from the judge’s acceptance, on a crucial issue, of the evidence of an independent witness for the defence.  That witness was Shirley Alex who attended AIRS during roughly the same period as M.J.  The significance placed by the trial judge on her evidence appears from paras. 50 and 52 of the reasons:

[50]  She denied that Ms. [M.J.] ever cleaned the Caldwell apartment while Ms. Alex was present cleaning on either Saturdays or on weekdays. She says that was her job and that she would have known if Ms. [M.J.] cleaned the residence on a regular basis on Saturdays. She says that if there had been anyone else cleaning the apartment on Saturdays she would have been aware of it.

and:

[52]  Shirley Alex’s evidence raises serious doubts as to the accuracy of Ms. [M.J.]’s recollections. It is not just a question of Ms. Alex not seeing any of the alleged assaults occurring. Rather she says clearly that Ms. [M.J.] was simply never present in the Caldwell living quarters on Saturdays or on any other day for that matter.

[96]        The direct evidence of Ms. Alex supported those conclusions.  The cross-examination, to which the trial judge made no reference, ended with the witness resiling from the most significant aspect of her evidence.  Towards the end of the cross-examination by Mr. Grant, the witness agreed that there were weekends during which she was absent from the school and that, on those occasions, someone else “undoubtedly” would have had to be brought in to clean the principal’s residence.  The examination concluded with this exchange:

Q     Mrs. Alex, given what you have described as your schedule, would it be fair to say that you do not know whether or not other girls, including [M.J.], sometimes cleaned in the Caldwell residence?  You don’t know that, do you?

A     I don’t know that.

[97]        That brief exchange appears to have been overlooked by the trial judge when he came, many months after the evidence was heard, to deliver his reasons.  It is evidence which, on its face, appears to remove the basis for the finding that M.J. was “never present” in the living quarters of Principal Caldwell.  That finding obviously was a crucial element in the court’s conclusion that M.J. was a wholly unreliable witness.  There was much else in the evidence which could justify a trier of fact in not accepting her evidence, including her evidence adduced on the damages phase of the trial which is analysed at length in paras. 661-742 of the reasons, which concludes with a less sympathetic overall assessment than that stated in paras. 55 and 56.  In concluding his consideration of the damages issue, the trial judge said:

[740]  I have concluded that I cannot rely on Ms. M.J.’s evidence at any stage in these proceedings.  She has not proven to the requisite standard that Mr. Caldwell sexually abused her.  In the damages phase of this case, Ms. M.J. has not proven that her psychological problems were caused by sexual assaults at AIRS as opposed to the many other traumatic experiences in her life.

[741]  Accordingly her claim will be dismissed and no award of damages made. 

[98]        However, having regard to the high degree of cogency implicit in the finding that she was never in the principal’s quarters, the danger remains that that finding had, in the end, an overriding influence on the finding that the plaintiff had not proven sexual abuse to the requisite standard.

[99]        I would allow M.J.’s appeal, set aside the dismissal of the action and order a new trial on all issues.

Supreme Court of Canada Decisions delivered after the hearing of these appeals

[100]    At the time these appeals were heard, the Supreme Court of Canada had under reserve its decisions in a trilogy of cases from this province (K.L.B. v. British Columbia, E.D.G. v. Hammer, M.B. v. British Columbia 2003 SCC 51, 52 and 53) (as per pages 38-39) which deal with several of the liability issues before us on these appeals.  Judgment in those cases was delivered on October 2, 2003, by which time these reasons had been drafted in substantially their present form and distributed to the other members of the panel for their consideration.  The trilogy is now the governing authority on several of the issues which arose in these cases.  I have considered whether these reasons should be revised to take account of what was said in the trilogy but have concluded that, as nothing in them would affect the outcome of these appeals, no useful purpose would be served by such a revision.

Summary of conclusions

[101]    (a)   The Church’s appeal against the finding of liability against it is allowed and the actions against it are dismissed.  (¶51)

            (b)   Canada’s appeal against the apportionment of liability between it and the Church is dismissed.  (¶51(2))

            (c)   Canada’s appeal against the finding that it had a non-delegable duty to the plaintiffs, and that it breached that duty, is dismissed.  (¶51(1))

            (d)   Canada’s appeal against the finding that it is liable to the plaintiff R.J.J. is dismissed.  (¶51(3))

            (e)   The appeals of all plaintiffs other than M.J. against the dismissal of their claims founded in negligence and breach of fiduciary duty are dismissed.  (¶65-74)

            (f)   The appeal by M.J. against the dismissal of her action is allowed and a new trial is ordered.  (¶90)

            (g)   The appeal by all plaintiffs respecting their claim for loss of native language and culture is dismissed.  (¶75-81)

            (h)   The appeal by M.J., R.J.J., R.F. and L.B. on the ground that they were unfairly limited in giving evidence is dismissed.  (¶82-89)

“The Honourable Mr. Justice Esson”

I Agree:

“The Honourable Mr. Justice Hall”

I Agree:

“The Honourable Madam Justice Saunders”

I Agree:

“The Honourable Mr. Justice Low”

I Agree:

“The Honourable Mr. Justice Smith”

Reasons for Judgment for the Honourable Mr. Justice Smith:

[102]    I have had the privilege of reading, in draft form, the reasons for judgment of Mr. Justice Esson.  I agree with his conclusions and with the reasons he has expressed for reaching them.  These reasons will deal with the matters mentioned in paragraphs 10 and 13 of his reasons as they affect Canada and the plaintiffs, since I agree that the Church has no liability for damages in these cases.  Accordingly, I will consider Canada’s appeal against the award of aggravated damages and the appeals by the successful plaintiffs, as against Canada, of the refusal to award them punitive damages, of the amounts awarded them as non-pecuniary damages, and of the failure to award them damages for loss of earnings or impairment of earning capacity.

1.    Canada’s appeal of the award of aggravated damages

[103]    The trial judge awarded aggravated non-pecuniary damages against Canada in favour of six plaintiffs.  Only in the case of the plaintiff F.L.B. did he award a discrete amount as aggravated damages. In the other five cases, he made a single award.

[104]    Canada submits that it cannot be liable for aggravated damages in this case because aggravated damages may be awarded only against a defendant found guilty of misconduct that aggravates the damage to the plaintiff caused by the wrongful conduct.  It relies on the trial judge’s rejection of the claims that it was negligent and in breach of fiduciary duty and on his finding, in refusing to award punitive damages against it, that its vicarious liability “does not arise from any misconduct or reprehensible conduct” on its part (¶ 419).

[105]    Canada’s submissions replicate those that it made in T.W.N.A. v. Canada (Minister of Indian Affairs), 2003 BCCA 670, which we heard concurrently with these appeals.  I concluded there (¶ 127-148) that aggravated damages are a part of compensatory non-pecuniary damages for which a vicariously liable party is responsible.  I would reject Canada’s submissions for the reasons I expressed in that case and I would accordingly dismiss Canada’s appeal.

2.    The plaintiffs’ appeal of the refusal to award punitive damages

[106]    The trial judge made discrete awards to each plaintiff of punitive damages against Plint.  The plaintiffs submit that the trial judge ought to have found Canada liable for these awards of punitive damages.  I cannot agree.

[107]    The nature and scope of punitive damages were recently discussed in Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18. The purpose of punitive damages is not to compensate for the particular plaintiff’s loss and damage. Rather, punitive damages serve the goals of punishment, deterrence, and denunciation and are akin to criminal sanctions.  Therefore, they are awarded against a defendant whose particular conduct merits condemnation.  Moreover, they can be awarded only as an adjunct of an independent actionable wrong committed by such a defendant against the plaintiff (see ¶ 78-82.)

[108]    Here, the trial judge concluded that Canada committed no actionable wrong and that, although Canada was vicariously liable for Plint’s wrongful conduct, its vicarious liability did not arise from any reprehensible conduct of its own.  In his words:

[417] The issue is whether either Canada or the Church can be held jointly and severally liable for such damages or whether the conduct of either defendant justifies an award of punitive damages.

[418] I conclude that it does not.  Punitive damages in this province are not awarded against an employer for the misconduct of an employee in the absence of reprehensible conduct specifically referable to the employer (see Houston v. Cook [1988] B.C.J. No. 2151; Critchley per Allan J.).

[419] In the case at bar I have dismissed the claims of direct liability against the defendants. I have found them liable on the principle of vicarious liability and, in the case of Canada, for breach of Canada’s non-delegable statutory duty. This liability does not arise from any misconduct or reprehensible conduct on their part.

[420] Rather this liability is imposed on these parties through a legal principle that allocates loss to a defendant solely by reason of the relationship between the defendant, the tortfeasor and the plaintiff. This type of liability is non-fault based and represents a policy choice that sees, as between an innocent plaintiff and the innocent employer of a tortfeasor, the loss allocated to the employer.

[421] Where liability is imposed in this way there is no basis in law for an award of punitive damages.

[109]    As I have said, I agree with Mr. Justice Esson, for the reasons he expresses in paragraphs 66-74 above, that the appeal against the refusal of the trial judge to hold Canada negligent and in breach of fiduciary duty must be dismissed. That disposition would remove any basis for an award of punitive damages against Canada unless it could be said that Canada committed some other independent actionable wrong for which it is liable to the plaintiffs.  The plaintiffs argue, in effect, that Canada did.

[110]    While it is not expressly stated in these terms, the essence of the plaintiffs’ submission in this respect is that Canada should be seen to have committed the sexual assaults.  This submission engages the “identification theory” of corporate liability.  This is an argument that was made obliquely, as well, in T.W.N.A. v. Canada (Minister of Indian Affairs), where I dealt with it at paragraphs 112-126.  I concluded in that case that the awards of punitive damages against Canada and the Church should be sustained; the employee whose egregious conduct gave rise to the awards held a position in the administration of the school such that he was, in effect, the directing mind of Canada and of the Church and his acts were their acts.  That employee possessed executive discretion and was not simply carrying out corporate policy set by others: see “Rhone” (The) v. “Peter A.B. Widener” (The), [1993] 1 S.C.R. 497 at 520-21.

[111]    Here, the plaintiffs seek to attach liability for punitive damages to Canada on the basis of Plint’s position in the school as a dormitory supervisor.  The trial judge found, in his reasons for judgment of June 4, 1998, reported at 52 B.C.L.R. (3d) 18, that Plint had the authority of a parent of the children and “in all respects functioned as their parent at AIRS” (¶ 24).  However, the trial judge described his position in the administrative hierarchy in this way:

[28]  ... It is clear that Plint reported to the principal of AIRS.  The principal created the rules Plint was to follow and he had complete control over and responsibility for Plint’s day to day activities.  The principal determined Plint’s salary within the appropriate budget category approved by Canada.  The principal had the authority to hire and fire dormitory supervisors ....

[112]    Thus, while Plint had parental authority over the children in his charge, he carried out his parental responsibilities in accordance with rules set down by the principal and under the principal’s direction.  He had no executive authority.  His position in the administrative hierarchy was, therefore, not one of top management so as to make his actions the actions of Canada itself.

[113]    This feature distinguishes this case from the decision in Gauthier v. Brome Lake (Town), [1998] 2 S.C.R. 3, upon which the plaintiffs rely.  There, a municipality was held liable for punitive damages arising out of a wrongful beating inflicted on a citizen by the chief of police.  The basis of the award was the finding that the chief of police was a directing mind of the city and that his intent to cause the consequences of his actions was, therefore, the intent of the city. Here, there was no finding that Plint was a directing mind of Canada.

[114]    In Peeters v. Canada, [1994] 1 F.C. 562 (C.A.), which the plaintiffs invoke as well, the basis of corporate liability was statutory.  In that case, the plaintiff, an inmate of a federal prison, was beaten by several prison guards, who were employees of the Correctional Service of Canada.  The trial judge awarded punitive damages against the Crown and the Crown appealed.  The Federal Court of Appeal agreed with the trial judge that the award against the Crown was permitted by s. 3 of the Crown Liability Act, R.S.C., 1985, c. C-50, which then provided:

3.    The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable

(a)   in respect of a tort committed by a servant of the Crown;....

The court agreed (at 569-70) with the trial judge’s conclusion:

... that the clear wording of the Act establishes the possibility of punitive damages against the Crown, since such damages are available against the private persons to whose position the Crown is assimilated....

No similar statutory provision was engaged here and, accordingly, the Peeters decision does not assist the plaintiffs.

[115]    The plaintiffs rely particularly, however, on some remarks made by the court in Peeters in response to the Crown’s argument that punitive damages could not be awarded against a blameless defendant.  At 576, the court said:

If, as I am convinced, punitive damages must ultimately be justified on the basis of deterrence, there can be no possibility of a deterrent effect if there is no complicity by employers against whom punitive awards are sought.  I am therefore led to the conclusion that an employer’s complicity in the tortious situation must be established by a plaintiff before punitive damages can be awarded against that employer.

The court concluded that the Crown was complicit because of findings by the trial judge that the officers involved were inadequately trained and that the assignment of the particular officers to attend to the plaintiff was, in essence, reckless in the circumstances.  Thus, the Crown was not blameless, but was guilty of negligence.

[116]    There were no similar findings made against Canada here.  Canada was not found guilty of any independent actionable wrong.  Moreover, the trial judge concluded, in the passage I have quoted above, that the conduct that rendered Canada vicariously liable for the wrongs committed by Plint was not deserving of condemnation.  That is a narrow finding in the context of the entire operation of AIRS and of the appalling treatment received by the plaintiffs in a general sense, but it is the material finding for purposes of punitive damages.  As this finding was open to the trial judge and was fully justified on the evidence, I see no basis upon which we could interfere.

[117]    For those reasons, I would reject this ground of appeal.

3.    The plaintiffs’ appeals from the awards of damages

[118]    The plaintiffs F.L.B., R.A.F., R.J.J., M.W.(2), and P.D.S. appeal against the trial judge’s assessments of damages.  They allege several errors by the learned trial judge in his treatment of their claims.

[119]    First, the plaintiffs assert that the trial judge made clear and overriding errors in his factual findings.

[120]    Next, they contend that he erred in principle in his approach to the assessment of their non-pecuniary damages.  They submit that:

1.    his finding that the sexual assaults were a material cause of their loss and damage required him to award them full compensation without diminishment on account of any unrelated contributing causes; and

2.    he failed to take into account, as aggravating factors warranting greater damages, contemporaneous emotional abuse, racism, isolation, and hunger experienced by the plaintiffs.

[121]    Further, they submit that the trial judge relied on a flawed range of non-pecuniary damages in similar cases or that he failed to recognize the appropriate range and that his awards under this head of damages are inordinately low.

[122]    Finally, four of the plaintiffs claim that the trial judge erred in dismissing their claims for damages for loss of earnings or loss of opportunity.

[123]    I have concluded that, with the exception of F.L.B.’s claim for damages for impairment of earning capacity, these submissions cannot succeed for the reasons that follow.

(a)   The standard of review

[124]    This Court may interfere with an award of damages made by a trial judge only if the appellant establishes a clear and overriding error in the trial judge’s approach: see M.B. v. British Columbia 2003 SCC 53 ¶54 and K.L.B. v. British Columbia 2003 SCC 51, where McLachlin C.J.C. said, in response to a submission that the trial judge had failed to give proper weight to various aspects of the evidence in arriving at her awards of damages:

[62]  ... The trial judge’s assessment of the evidence before her is a question of fact, which an appellate court cannot set aside absent “palpable and overriding error”: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802.  The trial judge’s findings of fact and the factual inferences she drew from them on the appropriate quantum of damages should be upheld.

[125]    The standard of review that has been applied in this Court for the past several years was described by McEachern C.J.B.C. in Cory v. Marsh (1993), 77 B.C.L.R. (2d) 248 ¶ 7-8 (C.A.), in this way:

In Nance v. British Columbia Electric Railway (1951), 2 W.W.R. (N.S.) 665 (P.C.), Viscount Simon delivered what is often regarded as the locus classicus on this question. He said, at p. 675, that an assessment of damages by a trial judge should not be interfered with unless the appellate court is:

...satisfied either that the judge ... applied a wrong principle of law ... or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

Because of its reference to inordinately low or high awards and to wholly erroneous estimates of the damage, Nance continues the proportionality approach taken in Davies.  This calls for consideration of whether an award is inordinately low, high, wholly erroneous or not erroneous in relation to both the circumstances of the case, and to other cases. In my view, an award is inordinately high, low or disproportionate if it falls substantially beyond the upper or lower range for damage awards in the same class of case.

                                                [Emphasis added]

[126]    These two formulations of the test for the appellate review of the quantum of awards of damages were recently discussed in Le v. Luz, 2003 BCCA 640 at paragraphs 10-13, where Donald J.A., speaking for the Court, concluded that the expressions “inordinately high or low,” “wholly out of proportion,” and “unreasonable and unjust” would each demonstrate palpable and overriding error.

(b)   The alleged factual errors

[127]    These appeals are coloured by the context in which they arose.  Young Indian children, who were taken from their homes and made to reside at AIRS, detached from their families, their communities, and their culture, were subjected to appalling treatment by some of the adults responsible for their custody and care.  This treatment excites feelings of sympathy, disgust, and anger in all reasonable persons.  However, such natural emotions cannot be allowed to distort the application of general legal principles.  The trial judge confronted this difficulty and responded, appropriately, in my view, with these remarks:

[332] It is shameful that these plaintiffs, along with so many other First Nations people, have a position which was in so many cases severely disadvantaged by the negative life-long effects of the simple fact of attending at an Indian Residential School. 

[333] However it is not the judicial role or function to engage in a consideration of such societal matters.  My task is to apply the principles of tort law and assess a dollar award for the injuries, which the plaintiffs have suffered and which were caused by the proven sexual assaults. 

[128]    The inability of the court to deal with all of their grievances has produced in the plaintiffs a palpable sense of disappointment in their awards.  As a result, they have mounted a comprehensive attack on the findings of fact made by the trial judge which, as Mr. Justice Esson has noted, were based on a huge body of evidence heard over a lengthy period of time involving events that occurred many years ago.

[129]    The plaintiffs allege a host of factual errors that they contend amount to “palpable and overriding” errors affecting the trial judge’s conclusions on pecuniary and non-pecuniary damages.  Many of these challenges assert simply that the trial judge took a wrong view of the evidence.  In other cases, the plaintiffs have winnowed evidence from the record to which the trial judge did not refer in his reasons for judgment.  In several instances, they have simply misunderstood or misstated evidence and the trial judge’s findings.

[130]    For example, R.A.F. asserts that the trial judge made a palpable and overriding error in finding that he “has no ongoing damages and requires no ongoing therapy.”  What the trial judge actually concluded was that R.A.F. “has no diagnosable psychological conditions and requires no ongoing therapy” (¶ 589).  This conclusion was based upon passages from Dr. O’Shaughnessy’s written report, set out at paragraphs 584 and 585, in which Dr. O’Shaughnessy expressed the opinion that R.A.F. was not demonstrating any major signs of psychiatric disorder and did not require any psychiatric intervention.

[131]    However, R.A.F. contends that Dr. O’Shaughnessy resiled from that opinion in his testimony.  He puts it this way in his factum:

The trial judge made a manifest and palpable error of fact when he found that Randy did not “currently demonstrate any major signs of any psychiatric disorder” and that he required no ongoing therapy. O’Shaughnessy resiled from many aspects of his original report and agreed that many of Randy’s current symptoms are found in PTSD, alcoholism, personality disorders and depression. He testified that Randy’s sexual dysfunction is significant and that Randy’s relationship with his wife is not stable and happy.

[132]    This submission misrepresents Dr. O’Shaughnessy’s testimony. While he did acknowledge that certain hypothetical symptoms were characteristic of PTSD, alcoholism, personality disorders, and depression, Dr. O’Shaughnessy was clear that R.A.F. did not have these symptoms and that R.A.F. did not demonstrate any major signs of psychiatric disorder, as the following passage from his cross-examination demonstrates:

Q     Now I’m going to ask you, Doctor, to assume the following facts. Mr. [R.A.F.] has recurrent memories of sexual abuse whenever he smells a type of soap, which Mr. Plint apparently used. He has memories of his Alberni Residential School experience triggered by certain foods, such as scalloped potatoes, Alaska black cod, and macaroni and cheese. During intercourse he has memories of abuse and gets tense and loses his erection. The thought of fellatio makes him lose his erection during lovemaking. When he feels anxious, memories of Alberni experiences come to his mind. He has and continues to isolate himself from his family and leaves the raising of his children to his wife. He is afraid to touch or hold his children and is plagued by the fear that the abused becomes the abuser.

A     I’m sorry, can you repeat that last one?

Q     He is plagued by the fear that the abused becomes the abuser. He is afraid that he will become an abuser. He has had serious bouts of depression starting after the abuse by Plint, reoccurring particularly severely for as long as five years in the 1980s, during the criminal trial of Plint, and which still occur, although less, today. He cannot express loving feelings to his wife and children and never plays with them. Until recently he avoided talking about the abuse at AIRS even with close family members. He abuses, up to now, alcohol, marijuana and other drugs to suppress his memories, his shame and his pain. He feels listless, has low energy and feelings of not wanting to do anything. He has attempted suicide twice and has wanted to die many times. He is irritable and is easily brought to anger with his own family, wife and children. He has great difficulty trusting people.  He has great difficulty falling asleep because memories keep popping into his head. Now, Doctor, assuming those facts, would you not agree that those are symptomatic of a -- psychiatric disorders?

A     I guess in response to -- first of all, you’re asking me to assume a number of facts that are new to me and that were specifically denied by Mr. [R.A.F.]. Bearing that in mind, what you’re certainly describing are a number of symptoms of psychological dysfunction. I don’t think you have met any of the criteria from that hypothetical of any specific psychiatric disorder, but you’ve touched upon symptoms in many that would be appropriate that I think I’ve touched on as well. Those include post-traumatic stress disorder, alcoholism, and all sorts of depression. And you’ve also touched upon symptoms that would be classified normally in the personality disorder region, long-standing kind of patterns. So I am -- you have not made a case, I guess, for any single disorder or meet the criteria for them, but you certainly have touched on many symptoms that would cross those thresholds.

[Emphasis added.]

[133]    Thus, Dr. O’Shaughnessy did not agree that R.A.F. exhibited the symptoms posed in the hypothetical question and, even if he had, Dr. O’Shaughnessy did not agree that the symptoms manifested a specific psychological disorder.

[134]    Accordingly, R.A.F. misunderstood Dr. O’Shaughnessy’s testimony and the basis upon which the trial judge made his finding.  The facts posed in the hypothetical question were not found by the trial judge and, as the trier of fact, he was entitled to accept Dr. O’Shaughnessy’s opinion on this issue.  I have not been persuaded that he committed any error in doing so.

[135]    Although there are more examples that I might choose, one further example will suffice to illustrate this point.

[136]    P.D.S. submits that the trial judge made a palpable and overriding error in concluding that P.D.S.’s “loss of employment was responsible for the panoply of psychological problems” that he experienced.  That is not an accurate statement of the trial judge’s finding, which was that P.D.S. had not “proved that any of the psychological difficulties he has experienced in his life after leaving AIRS were likely caused by the incidents he described” (¶ 766).

[137]    In any event, P.D.S. relies for this submission on the expert psychological evidence of Mr. Colby who relied on P.D.S.’s reports of difficulty sleeping, feelings of vulnerability, and decreased appetite, among other things, for his opinion that the sexual abuse perpetrated upon P.D.S. had caused him depression.

[138]    However, in his cross-examination, Mr. Colby admitted that he would reconsider his opinion if these symptoms had arisen at the time P.D.S.’s employment was terminated.  This cross-examination was set out by the trial judge in his reasons:

[761] Mr. Colby also says that, if he were presented with Mr. D.S.’s trial evidence about his being forced to leave his job with MacMillan Bloedel, he would agree that the loss of that job had a profoundly negative effect on Mr. D.S..  He said in his cross-examination:

Q.    If I were to suggest to you that Mr. D.S. has testified that the onset of his sleeping problems coincided with his termination by MacMillan Bloedel, would that suggest to you a relationship one with the other?

A.    Yes.

Q.    And if I were to add to that that he gave evidence that he had haunting feelings at night involving vulnerability which began when he left MacMillan Bloedel, that would be significant to you?

A.    If his statement is that that never occurred prior to that, certainly.

Q.    Yes.  And if he told you that he began feeling a fear of being around other people after he left his job at MacMillan Bloedel that too would be significant?

A.    Yes.

Q.    And the significance of these things would be that the loss of his job at MacMillan Bloedel has had a profound effect upon him?

A.    Correct.

Q.    And a negative effect?

A.    Yes.

[762] He also testified:

Q.    Well, Mr. Colby, Mr. D.S. lost his job in April of 1993 once and for all with MacMillan Bloedel, the only job he’d ever really had.  The job that he described as a very good job.  Surely that would a significant stressor for him immediately before August of 1993 when he’s having sleeping and eating difficulties.  Isn’t it reasonable to conclude that the one caused the other?

A.    It would be reasonable to conclude that that was a major stressor in his life, yes.

Q.    Okay, which in all likelihood resulted in his sleeping and eating difficulties?

A.    At that time, that would affect his sleeping and eating I’m sure.

[139]    P.D.S. submits that the trial judge erred in relying on this evidence because “the answers to hypothetical questions cannot be given more weight than the assumptions built into the questions and ... these questions did not remotely reflect the evidence before the Court.”  However, P.D.S. testified in his direct examination that his sleeping problems, including his haunting feelings at night, and his fear of being followed started at the end of his employment.  As well, he acknowledged that he had reported to his physician four months after he left his job that he was experiencing decreased sleep and appetite.

[140]    Thus, the trial judge was entitled to find that the facts upon which the hypothetical question was based had been proven and that the answers given by Mr. Colby deserved some weight.  This could have led him to conclude that P.D.S.’s depression resulted from his loss of employment, although he did not express that finding.  Moreover, the psychological effects of P.D.S.’s job loss, whatever they were, comprised only one of a number of circumstances found by the trial judge that may have led to his conclusion that no causal connection had been proven between P.D.S.’s psychological problems and the sexual abuse he had suffered.  This conclusion is a far cry from a finding that the “loss of employment was responsible for the panoply of psychological problems” suffered by P.D.S.

[141]    The question for this Court is whether the trial judge overlooked or misapprehended important evidence.  With the sole exceptions of his misapprehension of the evidence concerning M.J., which is discussed in Mr. Justice Esson’s reasons, and of the evidence concerning F.L.B.’s earning capacity, which I will discuss later in these reasons, I have not been persuaded that the trial judge did either in this case.

[142]    Questions of credibility of the witnesses and of the weight to be attached to their evidence, as well as findings of fact and the inferences to be drawn from them, are for the trial judge.  We cannot interfere simply because we might take a different view of the evidence. 

[143]    Further, a trial judge is not required to refer to all relevant evidence in reasons for judgment.  Such a requirement would be impractical, especially in cases of the length and complexity of these cases. 

[144]    I am not convinced that the trial judge in this case made any clear and obvious error on any fundamental matter of fact, with the exceptions I have already noted.  On the contrary, his central findings are grounded in the evidence and upon the view that he took of the evidence.  The plaintiffs’ meticulous attack on the trial judge’s findings of fact amount, in my opinion, to an invitation to this Court to retry the cases.  That is beyond our jurisdiction and I would, accordingly, reject this ground of appeal.

(c)   Non-pecuniary damages – the alleged errors in principle

[145]    The plaintiffs submit that the trial judge erred in principle by taking into account in his award of non-pecuniary damages contributing causes other than the sexual assaults.  In their submission, the error is in the following passage of the reasons for judgment:

[336] My task is to set an award of damages sufficient to compensate the plaintiffs for the differences between the way their lives would have been, given what even the defendants concede placed them in a severely compromised position by reason of their forced attendance at AIRS and the way their lives have been, given the additional, but by no means insubstantial, fact of the sexual assaults.

[146]    The plaintiffs argue that, because the sexual assaults contributed materially to their injuries, the defendants are “liable for the totality of the damages.”  They contend that other potentially causal factors may be taken into account only if they are “conditions,” by which I take it they mean conditions in the medical sense of impairment or dysfunction, and, as well, if the conditions are “manifest and disabling” at the time of the tort.  They make the same submissions on these points and rely on the same case authorities as did the plaintiffs in T.W.N.A. v. Canada (Minister of Indian Affairs), supra, in response to Canada’s appeal of non-pecuniary damages in that case.  For the reasons that I explained at paragraphs 14-36 of my reasons for judgment in that case, I cannot accede to those submissions.

[147]    The applicable principles are explained in Athey v. Leonati, [1996] 3 S.C.R. 458.  Canada is vicariously liable here because, in the case of each plaintiff, the sexual assaults committed by its employee, Plint, were a contributing cause of the particular plaintiff’s post-tort psychological dysfunctions.  Having determined causation and, thus, liability, direct and vicarious, the trial judge was required to assess damages.  In doing so, he was to be guided by the fundamental principle that damages in tort are awarded in order to restore the injured plaintiff to “the position he would have been in [had the sexual assaults not occurred], with all of its attendant risks and shortcomings, and not a better position” (Athey v. Leonati, ¶ 35).

[148]    The trial judge expressly instructed himself in those terms when he said:

[374] In Athey Major J. considered instances where it would be appropriate to limit the plaintiff’s entitlement to damages, even where causation has been proven with respect to liability.  In doing so, Major J. restated the following fundamental principle at para. 32:

The essential purpose and most basic principle of tort law is that the plaintiff must be placed in the position he or she would have been in absent the defendant’s negligence (the "original position").  However, the plaintiff is not to be placed in a position better than his or her original one.  It is therefore necessary not only to determine the plaintiff’s position after the tort but also to assess what the "original position" would have been.  It is the difference between these positions, the "original position" and the "injured position", which is the plaintiff’s loss.

[375] The proposition is simple to articulate: the measure of the plaintiffs’ damages is the difference between the position they would have been in absent the sexual abuse, and the position they occupy now given the occurrence of the sexual abuse.  The challenge lies in its application.

[149]    That is a correct statement of the law and I would reject the submission that the trial judge erred in principle in adopting this approach to the assessment of non-pecuniary damages.

[150]    The plaintiffs contend, in the alternative, as I understand their submission, that the trial judge erred in his application of this principle of assessment.  They present this argument in three different ways.

[151]    First, they submit that the trial judge erred in his identification of the plaintiffs’ original positions when he said:

[334] Leaving aside the sexual assaults, the plaintiffs would still have been at AIRS and they would:

(a)   have been living away from their

      families, communities and culture;

(b)   have been forced to speak English instead of their own Native languages;

(c)   have had to eat food that was vastly different from what they were used to;

(d)   have been subjected to the physical pain and the fear associated with the violence among the children;

(e)   have endured the terror of the gauntlet;

(f)   have been the victims of excessive corporal punishment from supervisors and other adults at AIRS; and

(g)   have been subject to racist discrimination when bussed to public schools.

[335] These factors, many other difficult lifetime experiences, and other background factors constitute these plaintiffs’ positions for comparison purposes.

[152]    In the plaintiffs’ submission, their original positions for purposes of the assessment of non-pecuniary damages were the positions that they were in when they were taken from their homes and placed in the school.  I cannot agree.

[153]    As I said in T.W.N.A. v. Canada (Minister of Indian Affairs), supra, at paragraph 47, the purpose of damages is to place the plaintiffs in the positions they would have been in had the sexual assaults not been committed.  It would, accordingly, be wrong to fix the benchmark as the positions they were in when they entered the school, a time that preceded the sexual assaults: B.(M.) v. British Columbia (2001), 87 B.C.L.R. (3d) 12, 2001 BCCA 227 ¶ 96, app. all’d on other grounds, 2003 SCC 53.

[154]    Second, the plaintiffs contend that, since the sexual assaults occurred contemporaneously with emotional abuse, racism, isolation, and hunger experienced by the plaintiffs, the trial judge erred in law in separating the effects of the sexual assaults and in awarding damages only for those effects.  In their submission, these events and their consequences are inextricably intertwined and, as a matter of law, the trial judge was required to award damages without reduction for damage caused by events other than the sexual assaults.

[155]    The plaintiffs rely on J.L.M. v. P.H. (1998), 109 B.C.A.C. 165, but this decision does not support their submission.  In that case, the plaintiff sued her father for damages for sexual and physical assaults.  The trial judge found that both forms of assault had been proven.  Because the medical opinion evidence, which she accepted, was that the plaintiff’s condition was produced by a combination of the physical and sexual assaults, the trial judge observed that it was not appropriate to attempt to separate the two forms of abuse and to award damages separately.  Mr. Justice Lambert, speaking for this Court on the appeal, noted that no objection was taken to the manner in which the trial judge assessed damages.  There was no need in that case, as a matter of law or of fact, to separate the effects of the physical and sexual assaults since the defendant was liable for the effects of both.  Accordingly, this decision is not authority for the proposition that it is an error of law to separate the effects of the tort from the effects of other contemporary causal factors. 

[156]    Here, Canada is liable to pay compensatory damages only for the effects of the sexual assaults and is not liable to compensate the plaintiffs for aspects of their present conditions that are causally unrelated to the sexual assaults. Whether the consequences of the sexual assaults can be separated from the consequences of the other unrelated causal factors is a question of fact, not a question of law.  Accordingly, the trial judge made no error in principle in separating these consequences.

[157]    Third, the plaintiffs submit that to limit the award to the loss and damage caused by the sexual assaults and to exclude the detrimental effects of the other matters arising out of the plaintiffs’ experiences at the school is to enrich the defendants for their improper care of the plaintiffs and to allow them to profit from their own wrongdoing.  There is no merit in this submission.  The failure to order the defendants to pay damages for losses for which they are not liable cannot amount to an enrichment of the defendants.  This submission is simply another way of saying that the other factors amount to actionable wrongs for which the plaintiffs should be awarded damages.  The trial judge held that claims in respect of these matters are barred by statutory prescription.  As Mr. Justice Esson explains at paragraphs 79-81 of his reasons above, that conclusion must stand.

[158]    For those reasons, I would reject the submissions that the trial judge erred by taking into account in his assessment of non-pecuniary damages unrelated contributing causes of the plaintiffs’ present psychological conditions.

(d)   Non-pecuniary damages – the alleged failure to consider aggravating factors

[159]    Next, the plaintiffs submit that the trial judge failed to take the plaintiffs’ traumatic experiences at the school into account as aggravating circumstances.  Again, I cannot agree.

[160]    In his introduction to the assessment of damages, the trial judge identified his task as placing the plaintiffs in the positions they would have been in absent the commission of the sexual assaults.  At paragraph 329, he said that he must exclude from his assessment of damages injuries that arose, not from sexual misconduct, but from misconduct that was no longer actionable by reason of the effluxion of time.  He continued, however:

[330] That is not to say that the circumstances in which the plaintiffs found themselves at the time the sexual assaults were committed and thereafter should be ignored. They were away from the comfort of their families and culture in a residential school to which their attendance was compelled.

[331] These circumstances must be taken into account in two ways. First, I must consider the particularly vulnerable position of each plaintiff arising from the compulsory attendance so far removed from home community. Second, I must also consider the position each plaintiff would have been in had the sexual assaults never occurred.

...

[333] ... My task is to apply the principles of tort law and assess a dollar award for the injuries, which the plaintiffs have suffered and which were caused by the proven sexual assaults.  These principles require me to consider the fact of attendance at residential schools not as a basis for an award of damages in and of itself, but rather as a factor to be considered when assessing the impact of the sexual abuse. It must also serve as a baseline for a comparison of the effects of the sexual assaults which were committed.

                                          [Emphasis added]

[161]    The observation that he must consider these circumstances in relation to their impact on the plaintiffs is, in my view, a clear reference by the trial judge to the need to take them into account as aggravating factors.  Moreover, it is equally clear that he treated them in that way in his assessment of damages in each case.

[162]    In his review of the evidence relating to the plaintiff F.L.B., the trial judge referred to the terrible circumstances endured by F.L.B.  He noted that the “non-sexual brutalization” at AIRS had a “significant impact” on F.L.B. He referred to the racial criticism inflicted on F.L.B., to his youth and vulnerability, and to the sexual violation as a breach of trust by a person who stood in the position of a parent to him.  Thus, the trial judge recognized that these factors made the plaintiffs more vulnerable to damage from the sexual assaults.

[163]    Similarly, the trial judge referred, in his review of the evidence relating to R.A.F., to the terrible circumstances in which R.A.F. lived.  In making his award, he said that the sexual assaults “were committed against a vulnerable child by a person in authority in the circumstances in which Mr. R.F. found himself at AIRS” (¶ 599).  He made a like examination of the evidence in the cases of R.J.J. and M.W.(2).  In the case of M.W.(2), he concluded:

[918] Mr. M.W. was exposed to a great deal of violence at AIRS.  He was involved in many fights and was forced to run the gauntlet on several occasions.  He felt very much alone ....

[164]    The trial judge’s reasons demonstrate that he was alive to the need to take into account the aggravating circumstances, and the suggestion that he ignored them cannot be supported.  I would reject the plaintiffs’ submissions in this regard.

(e)   Non-pecuniary damages – the allegation that the awards are inordinately low

[165]    I turn next to the plaintiffs’ submission that the non-pecuniary awards should have been substantially higher in each case.

[166]    The trial judge awarded $145,000 in non-pecuniary damages to F.L.B., of which he identified $20,000 as aggravated damages.  His awards of non-pecuniary damages to the other plaintiffs, which included aggravated damages, were $85,000 to R.A.F., $20,000 to R.J.J., $10,000 to P.D.S., and $15,000 to M.W.(2).

[167]    The plaintiffs contend, first, that the range of comparable awards established by trial judges is too low because the upward movement of the range has been improperly suppressed by trial judges.  Next, they submit that the trial judge failed to recognize the appropriate comparative range.  Finally, they argue that the individual awards were so inordinately low that they require correction by this Court.

(i) Is the range of comparable awards too low?

[168]    The plaintiffs’ first point in respect of their submission that the comparative range is flawed is that trial judges have incorrectly treated the judgment in Y.(S.) v. C.(F.G.) (1996), 26 B.C.L.R. (3d) 155 (C.A.) as setting a “cap” on non-pecuniary damages in cases of this type.  There is no merit in this submission.

[169]    First, the decision in Y.(S.) v. C.(F.G.) made it clear that there is no legal limit on non-pecuniary awards in cases of sexual assault.  In that case, this Court set aside a judgment based on a jury award of $350,000 in a case of sexual abuse and substituted an award of $250,000 for aggravated non-pecuniary damages.  In the course of doing so, the Court rejected an argument that cases involving sexual abuse of children are affected by the legal limit on non-pecuniary damages imposed by the Supreme Court of Canada in the 1978 trilogy: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Arnold v. Teno, [1978] 2 S.C.R. 287; and Thornton v. Board of School Trustees of School District No. 57 (Prince George), [1978] 2 S.C.R. 267.  The Court concluded that the policy considerations that favoured imposition of a legal limit on non-pecuniary damages in those cases do not apply in cases of sexual assault.

[170]    As well, none of the awards relied upon by the learned trial judge as comparables approached $250,000 in amount.  Accordingly, no question of a legal limit arose in those decisions.

[171]    However, I think what the plaintiffs intended to say by this submission is that trial judges have treated the award in Y.(S.) v. C.(F.G.), not as a legal limit on non-pecuniary damages, but as the top of the range of comparable awards and that they have, as a result, improperly limited the upward growth of the range.  I agree that some trial judges have treated this award as exemplifying the top of the comparable range.  Nevertheless, I cannot agree that trial judges have established a range of awards in comparable cases that is unjustifiably low.

[172]    In Y.(S.) v. C.(F.G.), the Court remarked (¶ 31), “In some cases, sexual abuse victims may require and deserve more than the ‘cap’ allows, due to the unpredictable impact of the tort on their lives.”  The plaintiffs take this comment as an indication that the range of awards for this class of cases should be much higher than the trial judge considered it to be.  They seek support for this submission in A.B. v. T.S., 2000 BCSC 976, where the trial judge said:

[40]  Although the cases that pre-date Y.(S.) v. C.(F.G.) are of some interest, the goal post, in my view, has clearly been shifted and the Court of Appeal has indicated that higher awards are required in these type of cases.

[173]    With respect, I do not agree that Y.(S.) v. C.(F.G.) supports that proposition. 

[174]    First, at the trial level, damages are a question of fact in each case, to be decided on the evidence adduced.  Trial judges refer to awards in similar cases to explain their own awards, but they are not bound by them. Decisions in similar cases serve simply to inform judges of what other trial judges might view as appropriate awards in the particular cases before them.  It is possible to use trial judges’ awards in this way because they are published and are readily accessible.  Thus, patterns and ranges may be discerned.

[175]    Next, awards made by trial judges are useful for comparative purposes because they come with explanation.  This is of particular importance for appellate courts, which may interfere with a trial judge’s award of damages only if “palpable and overriding error” in approach is identified.  Reasons given by trial judges expose clear errors that may have had a controlling effect on the result.

[176]    Jury awards, on the other hand, are inscrutable and, since they are not published in any of the usual reporting services, are for practical purposes inaccessible.  Thus, they cannot be used in the same way as the awards of trial judges. 

[177]    Further, an award substituted by an appellate court for a jury award is not a particularly useful indicator of what a trial judge might award if asked to assess damages after hearing the evidence that was heard by the jury.  It is the result of the application of different principles than those applied in the assessment of damages.  It represents the correction of an erroneous award; it is not an assessment of damages de novo.

[178]    This distinction becomes apparent on an examination of the process of appellate review of the quantum of awards made at trial.

[179]    The standard of review of an award of non-pecuniary damages by a jury is the same as that for awards made by trial judges.  This was explained in Cory v. Marsh, supra, fll’d. Cody v. Leonard (1995), 15 B.C.L.R. (3d) 117 (C.A.).  For a discussion of this development, see Ferguson v. Lush, 2003 BCCA 579 ¶ 32-50.  Accordingly, on an appeal of a jury award, this Court must have regard to the relevant range of awards established by trial judges.  However, we must remember that awards of damages are findings of fact and must be approached with a high degree of deference.  Indeed, the disparity between a jury’s award of non-pecuniary damages and what would have been a proper award must be much greater than the disparity between a trial judge’s award and a proper award before an appellate court will interfere.  As Lord Wright said, in Davies v. Powell Duffryn Associated Collieries, [1942] A.C. 601 (H.L.) at 616:

...An appellate court is always reluctant to interfere with a finding of the trial judge on any question of fact, but it is particularly reluctant to interfere with a finding on damages which differs from an ordinary finding of fact in that it is generally much more a matter of speculation and estimate.  No doubt, this statement is truer in respect of some cases than of others.  The damages in some cases may be objective and depend on definite facts and established rules of law, as, for instance, in general damages for breach of contract for the sale of goods. In these cases the finding as to amount of damages differs little from any other finding of fact, and can equally be reviewed if there is error in law or in fact.  At the other end of the scale would come damages for pain and suffering or wrongs such as slander.  These latter cases are almost entirely a matter of impression and of common sense, and are only subject to review in very special cases.  There is an obvious difference between cases tried with a jury and cases tried by a judge alone. Where the verdict is that of a jury, it will only be set aside if the appellate court is satisfied that the verdict on damages is such that it is out of all proportion to the circumstances of the case ....

[180]    This deference to the views of the jury is normally reflected in awards substituted by appellate courts.  Thus, for example, in Cory v. Marsh, supra, McEachern C.J.B.C. substituted an award for Mrs. Cory that was above the top of the normal range and substituted an award for Mr. Cory at the high end of the range even though, as a trial judge, he would have assessed damages at a much lower figure (¶ 20-21).  This exemplifies the nature of an award substituted by this Court for the award of a jury.  This Court does not substitute the “correct” amount but simply an amount that is not so distant from the relevant range that it can be considered to be inordinately so.  As Madam Justice Southin explained in Strazza v. Stupich (2000), 138 B.C.A.C. 161, 2000 BCCA 108, an appeal from a jury award:

[6]   Counsel for the respondent puts to us the proposition that if this court is of the view that an award is inordinate, the proper function of this court is not to substitute the award that the court would have made had it been the court of original jurisdiction, but to substitute that award which if it had been attacked in this court we would say it might be high but we cannot say it is inordinate.  I do not understand counsel for the appellant to really dispute that that is the proper way for us to approach the issue.

After concluding that the award was inordinately high, she stated:

[7]   ... I have asked myself what award would I have said is high but I cannot interfere and the answer which I have come up with is $75,000.

[181]    Similarly, in Deglow v. Uffelman (2001), 96 B.C.L.R. (3d) 130, 2001 BCCA 652, Madam Justice Levine, speaking for the Court, concluded that a jury award of $100,000 was inordinately high and stated:

[20]  ... I would substitute an award of $75,000, which I would consider high but not inordinate.

See also, to the same effect, Cody v. Leonard, supra ¶ 16-26.

[182]    Accordingly, an award that an appellate court substitutes for a wholly erroneous jury award should not be treated as a direct adjustment of the existing range of comparable awards in similar cases.  Such an appellate judgment is the product of the application of principles different from those that govern assessments of damages at trial.  As a result, it is not an assessment of damages, let alone an assessment carried out by a trial judge with all of the manifest advantages of seeing and hearing the parties and their witnesses.  Moreover, it will generally be skewed toward or beyond the limits of the relevant range out of deference to the views of the jury, which will be assumed to have made all findings of underlying fact capable of supporting the award and reasonably open to it.

[183]    That is not to say that jury verdicts have no role to play in the establishment of a range of comparable awards at the trial level.  As Pearce L.J. remarked, in Morey v. Woodfield (No.2), [1963] 3 All E.R. 533 (C.A.), in a passage quoted with approval by Bull J.A. in Bisson v. Corporation of Powell River (1967), 62 W.W.R. 707 at 721-22 (B.C.C.A.) and by McEachern C.J.B.C. in Cory v. Marsh, supra, at 252:

What standard then is to be used in measuring excess?  Morris, L.J. in Scott v. Musial, [1959] 2 Q.B. 429, 438, [1959] 3 W.L.R. 437, [1959] 3 All E.R. 193 (C.A.), pointed out that in cases which are comparable but which are decided by different judges, a certain pattern or level of awards of damages may emerge.  He also said [1959] 2 Q.B. 429, 438: “If, however, an award of a jury does not conform to such a pattern, that is not to prove that the jury is necessarily wrong.  The views of juries may form a valuable corrective to the views of judges.  The jury will not necessarily have knowledge of any pattern or level which judges have thought to be appropriate, and the jury are not bound by any such pattern or level.” 

                        [Emphasis added]

[184]    In stating that the “views of juries may form a valuable corrective to the views of judges,” Morris L.J. meant, in my opinion, that trial judges may consider jury awards as reflective of community standards and may adjust their awards accordingly: see, for example, Brisson v. Brisson (2002), 213 D.L.R. (4th) 428, 2002 BCCA 279 ¶ 21-23.  This proposition is self-evident.  Trial judges sit with juries.  They hear the same evidence and form their own views of appropriate awards.  When their views and the views of their juries differ, they try to understand why.  As well, they discuss their cases and the awards of their juries with their colleagues.  In this way, the shared notions of justice and fairness held in the community at large can meld with and temper the views of trial judges to produce awards by them that find public acceptance because they are seen to be generally fair, proper, and just.

[185]    In turn, a range of such awards provides a reliable touchstone against which appellate courts may identify and adjust those that deviate excessively from community standards.

[186]    Y.(S.) v. C.(F.G.), is an example of the approach that this Court takes to the review of jury awards.  The jury in this case awarded compensatory damages, including aggravated damages, of $350,000 to a woman who had been sexually abused by her stepfather between one and three times per week over a period of seven years commencing when she was seven years old.  The assaults were attended by serious aggravating circumstances.  This Court allowed the appeal on the ground that the award was so inordinately high that it was a wholly erroneous estimate of the loss. After reviewing a number of decisions and concluding that a general range for similar cases of $40,000 to $65,000 prior to 1990 had increased by 1996 to about $100,000 to $175,000, Mr. Justice Macfarlane, speaking for the Court, concluded:

[59]  In my opinion an award of $250,000 would not have been wholly out of proportion in view of the factors open for consideration by the jury.

[187]    Mr. Justice Macfarlane did not decide that, on a de novo assessment of damages, $250,000 would have been a proper award in the circumstances.  Rather, the award of $250,000 that he substituted was substantially above the top of the general range for similar cases decided by trial judges, which he identified as $175,000, but not so substantially or inordinately above the range that it could be considered wholly erroneous in the circumstances.  In fixing the award so far above the top of the range, he was obviously deferring to the very favourable view taken by the jury of the plaintiff’s case.

[188]    Accordingly, the substituted award in Y.(S.) v. C.(F.G.) has limited value as a comparator since it is substantially outside the ordinary range and, as it was not a trial judge’s assessment of appropriate compensation, it should not be taken as shifting the top of the range upward to $250,000.  As I have explained, an appellate award in substitution for a jury award of damages has value only indirectly as an indicator of the appropriate general range of damages in similar cases.

[189]    Cases like Bob v. Bellerose (2003), 16 B.C.L.R. (4th) 56, 2003 BCCA 371 and Vaillancourt v. Molnar Estate (2002), 8 B.C.L.R. (4th) 260, 2002 BCCA 685 are exceptions.  As Madam Justice Huddart observed in Bob v. Bellerose at paragraph 21, in those cases counsel agreed that this Court should assess damages, putting the Court in the position of a court of first instance.  Accordingly, the awards in those cases, although they were derived from “the inanimate, coldly impersonal printed page” rather than from “an animated ... passing parade of real, live people” (Gibbs J.A. dissenting in Cory v. Marsh, supra ¶ 32), might properly be considered, in an appropriate case, as indicators of a range of awards in similar cases.  However, as those decisions were quite different on their facts from the cases now before us, they are of no relevance on these appeals.

[190]    Accordingly, I would reject the submission that the range of awards in comparable cases is too low because it has been improperly suppressed by trial judges generally.

(ii)  Did the trial judge fail to recognize the appropriate range?

[191]    The plaintiffs submit next that the trial judge failed to recognize the appropriate range of awards of non-pecuniary damages in comparable cases and that, as a result, he erred by not making substantially larger awards to them.

[192]    Here, the trial judge noted (¶ 398-400), correctly, in my view, that the award of $250,000 substituted by this Court in Y.(S.) v. C.(F.G.) was of limited utility in a consideration of the appropriate range of awards in roughly comparable cases.  He referred (¶ 401-415) to several trial judgments handed down since that decision in this province and, as well, in Saskatchewan, in which the highest awards were $175,000 and $185,000 and the lowest were $5,000 and $10,000.  He discussed, as well, several awards falling at various levels within that range.

[193]    I am satisfied that, in each of the cases referred to by the trial judge in his review of the relevant range, the trial judge assessed damages as a question of fact having regard to the particular circumstances of the individual plaintiff and to awards made by other trial judges in roughly comparable cases.  Accordingly, I am not persuaded that any error in principle suppressed the range of damages to be considered for purposes of appellate review.  Moreover, many of the trial judges in those decisions, including those involving some of the higher awards, considered the substituted award in Y.(S.) v. C.(F.G.) in their discussions of the conventional range of awards.  It appears that some of them treated it as establishing the high end of the relevant range.  I think they erred in doing so, for the reasons I have already expressed, but, in any event, this approach operated to the potential advantage of the plaintiffs. 

[194]    I have reviewed a number of decisions, not mentioned by the trial judge, that have been handed down by trial judges in sexual assault cases since Y.(S.) v. C.(F.G.) was decided.  The awards broadly accord with those discussed by the trial judge at paragraphs 401-415 of his reasons for judgment.  They include W.K. v. Pornbacher (1997), 32 B.C.L.R. (3d) 360 (S.C.) - $30,000; C.A. v. Critchley (1997), 35 B.C.L.R. (3d) 234 (S.C.) - $50,000, $75,000, $75,000, and $60,000; P.A.C. v. J.C.T., [1998] B.C.J. No. 1088 (Q.L.)(S.C.) - $175,000; T.S. v. J.W.P., [1999] B.C.J. No. 709 (Q.L.)(S.C.) - $130,000; A.B. v. T.S., supra - $165,000; W.M.Y. v. Scott, 2000 BCSC 1294 - $110,000; B.(M.) v. British Columbia, 2000 BCSC 735 - $80,000; M.E.W. v. R.A., 2001 BCSC 863 - $100,000; E.(J.A.K.) v. British Columbia (2002), 1 B.C.L.R. (4th) 107, 2002 BCSC 418 - $150,000; E.P. v. J.E.S., 2002 BCSC 588 - $150,000; C.R. v. R.R., 2002 BCSC 1275 - $75,000; L.B. v. W.M., 2003 BCSC 261 - $125,000, and Doe v. O’Dell, [2003] O.J. No. 3546 (Q.L.)(S.C.J.) - $175,000.

[195]    The award in each of these cases stands on its particular facts and each, of course, is useful only as a rough comparator.  Nevertheless, these awards confirm, in my view, that the trial judge had in mind the appropriate range of awards in similar cases and I would reject the submission that he erred in failing to adhere to a higher range and to make substantially larger awards on that basis.

(iii) Were the individual awards so inordinately low as to require correction by this Court?

[196]    I turn next to the question of whether the individual non-pecuniary awards in issue can be said to be so inordinately low that they reflect palpable and overriding error and must be corrected by this Court.

[197]    The assessment of damages is an inherently difficult and inexact process.  In Andrews v. Grand & Toy Alberta Ltd., supra, Dickson J. said, at 261:

There is no medium of exchange for happiness.  There is no market for expectation of life.  The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one.  The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional.  No money can provide true restitution.

[198]    The process of assessment is particularly difficult in cases of sexual abuse, a relatively new area of exploration by the courts and one in which aggravating factors play a major role.  Mr. Justice Macfarlane referred to these difficulties in Y.(S.) v. C.(F.G.):

[55]  What is fair and reasonable compensation for general damages, including aggravated damages, in this case is not easy to say.  This is an evolving area of the law.  We are just beginning to understand the horrendous impact of sexual abuse.  To assess damages for the psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water.  The possible consequences of such abuse presently are not capable of critical measurement.

[56]  Comparison with the awards made in similar cases is helpful in maintaining consistency, and therefore giving fair and equivalent treatment to all victims.  But the impact on individuals in particular circumstances of sexual abuse is so difficult to measure that other cases can only provide a rough guide for assessment in this case.

[57]  Critical to any assessment is the view which the trier of the facts takes of aggravating features. ...

[199]    The observation of Macfarlane J.A. that the consequences of sexual abuse are not capable of “critical measurement” is an important one.  These cases typically involve emotional and psychological effects upon plaintiffs which are difficult to measure and to isolate in a causal context.  Nevertheless, as difficult as this is, trial judges must attempt to identify the consequences of the abuse and to award compensation for them.  Where other causes are alleged, however, there must be evidence to support the allegation; trial judges may not simply assume detrimental effects arising out of a plaintiff’s difficult or disadvantaged past: K.L.B. v. British Columbia, supra ¶ 61.

[200]    In this case, the trial judge reviewed the evidence relevant to damages carefully and at length in respect of each plaintiff.

[201]    In the case of F.L.B., who was 41 years old at the commencement of the trial, the trial judge found that the sexual abuse at the hands of Mr. Plint began when he was 7 years old and in his second year at AIRS and ended when he left school at age 12.  He found that Mr. Plint forced the plaintiff to perform fellatio on three occasions and that Mr. Plint anally raped him once.  He concluded that it was likely that Mr. Plint sexually assaulted the plaintiff on other occasions.  There were serious aggravating circumstances, including the obvious vulnerability of the plaintiff.  The four assaults were violent and brutal and were accompanied by threats of death.  Mr. Plint covered F.L.B.’s mouth with his hand to prevent his calling for help, punched him in the stomach, and struck him in the head and ears. The trial judge found that, as a result of the assaults, F.L.B. suffers from a personality disorder that inhibits development of personal relationships and produces impulsive behaviour and an inability to manage anger.  As well, he has impaired self-esteem and has difficulties in formulating an identity.  However, the trial judge concluded that F.L.B. would have suffered from significant psychological difficulties anyway, given the traumatic events in his family background and in his life prior to entering AIRS, and the other unrelated traumatic experiences that he suffered at AIRS and afterwards.

[202]    Thus, the trial judge identified F.L.B.’s original position and compared it to his injured position, as he was required to do.  His conclusion that F.L.B. was likely to have suffered psychological difficulties in any event was not a mere assumption but was based on inferences that he drew from the evidence, which he discussed in detail.  He took into account the particular consequences for F.L.B. of the sexual assaults.  He considered the aggravating features and, as well, he discussed and considered awards made in similar cases.  I am quite unable to say, having regard to the circumstances of this case and to the awards made in roughly comparable cases, that his aggregate award of $145,000 for non-pecuniary damages is inordinately low or wholly out of proportion to what the circumstances called for.

[203]    R.A.F. was 47 years old at the trial.  In 1962 and 1963, when he was 12 and 13 years old, Plint twice forced him to perform fellatio and to engage in mutual masturbation.  As well, Mr. Plint placed his penis between R.A.F.’s legs and simulated intercourse.  Mr. Plint sexually assaulted R.A.F. on four other occasions in 1962 and subjected him to between 6 and 12 incidents, which R.A.F. was unable to describe, of sexual abuse in 1963.  These assaults contributed to the periodic bouts of depression suffered since then by R.A.F.  However, the trial judge expressed some tentativeness about a diagnosis of a psychiatric condition and concluded, in any event, that whatever psychiatric problems did exist were relatively mild, that R.A.F. has recovered from them, and that he has no present psychological conditions and requires no psychotherapy.

[204]    Again, the trial judge considered everything that he should have considered in arriving at his award.  It cannot be said, in my view, that the award of $85,000 is out of proportion to the circumstances or inordinately low.  It survives a rough comparison with other awards in somewhat similar cases.

[205]    R.J.J. was 57 years old at trial.  Between when he was 9 years old, in his first year at AIRS, and when he was aged 12, Mr. Plint engaged him, on more than one occasion, in mutual fondling of genitals, mutual masturbation, and fellatio.  The trial judge concluded that R.J.J. had not proven that the effects of these assaults resulted in any psychological injury beyond the de minimis level.  These sexual assaults were of a relatively less-serious nature and his award of $20,000 is within the relevant range of awards in such cases.

[206]    P.D.S. was 46 years old at trial.  He attended AIRS from age 8 to age 17.  On four occasions, Mr. Plint placed P.D.S.’s hand on his genital area over his clothing.  Although P.D.S. was experiencing psychological difficulties, the trial judge was unable to conclude that these incidents caused or contributed to the difficulties.  It cannot be said, given the trial judge’s findings, that the award of $10,000 is below the relevant range, let alone inordinately so.  While any sexual assault is a most serious matter, in the context of an award of compensatory damages these assaults were relatively minor.

[207]    Finally, M.W.(2) was 41 years old at trial.  Mr. Plint sexually abused him when he was apparently between the ages of 4 and 7.  It appears that the trial judge had some difficulty with this assessment because of what he saw as a divergence between the evidence and the particulars of sexual assault admitted in the pleadings.  The relevant allegations in the statement of claim, which were formally admitted, were that Plint’s assaults consisted of “fondling my genitals and masturbating me” and of “forcing me to fondle the genitals of and to masturbate Plint.”  It is clear from a reading of the reasons for judgment that the trial judge doubted the reliability of this plaintiff’s testimony.  He said, among other things:

[874] Of the various descriptions of the assaults which Mr. M.W.(2) provided prior to testifying in this case, the only descriptions which were consistent were those which Mr. M.W.(2) provided to his brother D. after his return to Kincolith from AIRS and the one he provided in his second statement to Constable Hopp on January 12, 1996: that is that Plint forced Mr. M.W.(2) to fondle Plint’s penis. While I can accept that Mr. M.W.(2) failed to provide an accurate report as to frequency, I cannot make an additional finding that the abuse was more severe as described in his later retelling of events.

[208]    The trial judge expressed his conclusions in this way:

[882] Nowhere in his evidence has Mr. M.W.(2) suggested that Mr. Plint fondled or masturbated him. Those allegations are not proved.  The allegation of sexual assault that remains from those set out in the Statement of Claim is consistent with what Mr. M.W.(2) told his brother over 30 years ago and with what he told Constable Hopp on January 12, 1996: on one occasion Mr. Plint forced Mr. M.W.(2) to fondle Mr. Plint’s penis.

[883] It was only after Mr. M.W.(2) heard graphic testimony from each of his three brothers and from W.R.B. and C.M.G. in February of 1998 that he began to assert that the sexual assaults committed upon him by Plint involved anything more than a single incident wherein Mr. M.W.(2) was made to fondle Plint’s penis.  It appears that on the same day that the last of Mr. M.W.(2)’s brothers testified, February 5, 1998, Mr. M.W.(2) described for the first time to Dr. Brasfield that the sexual assaults committed upon by Plint included oral and anal rapes.  Mr. M.W.(2) also adopted the evidence of many less dramatic experiences from the first witnesses.

[884] There are many inconsistencies and contradictions in Mr. M.W.(2)’s evidence.  However, the defendants chose to admit that Mr. M.W.(2) was sexually abused by Plint as set out in the pleadings.  In my view that obliges me to find that Plint took Mr. M.W.(2)’s hand and placed it inside Plint’s pants on Plint’s penis and that it likely occurred on more than one occasion between January 1, 1961 and December 31, 1963.

[209]    Nevertheless, the trial judge was not satisfied that this plaintiff had proven that his ongoing psychological difficulties were causally related to these events.  Given the trial judge’s findings, it is my view that his award of $15,000 is unassailable on the principles by which we must review awards of damages.

[210]    Accordingly, in each case, I would reject the submission that the award of aggravated non-pecuniary damages is so inordinately low that this Court should intervene to correct it.

(f)   The appeals from the failure to award damages for loss of earnings or impairment of earning capacity

[211]    The appeals in relation to earnings and earning capacity are brought by four plaintiffs only, namely, F.L.B., R.A.F., M.W.(2), and P.D.S.  I will deal first with the submissions of F.L.B., R.A.F., and M.W.(2).

[212]    The plaintiffs F.L.B. and R.A.F. submit that the trial judge erred in failing to award them damages for past and future loss of opportunity to earn income.  M.W.(2) contends that the trial judge erred in both of those respects and, as well, in failing to award him damages for past loss of earnings.  More particularly, these plaintiffs contend that the trial judge erred in law in requiring “scientific precision” in the proof of causation of past losses when he should have drawn a “common sense inference,” and in failing to consider the factors set out in Brown v. Golaiy, (1985), 26 B.C.L.R. (3d) 353 ¶ 8 (S.C.) in his assessment of the claim for damages for loss of opportunity.

[213]    While past pecuniary losses must be proven on a balance of probabilities, a claim for damages for future loss of opportunity requires a comparison of pre- and post-tort earning capacity and must be established on the standard of simple probability, or realistic chance: Janiak v. Ippolito, [1985] 1 S.C.R. 146 at 170-71, Athey v. Leonati, supra ¶ 27-29, Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 ¶ 9.

[214]    These plaintiffs founded their submission that the trial judge required scientific proof of causation of their past losses on the decision in Snell v. Farrell, [1990] 2 S.C.R. 311.  That was a medical malpractice case and the issue was whether the plaintiff required a firm medical opinion to establish a causal link between her surgical outcome and the defendant doctor’s actions.  Sopinka J., speaking for the court, noted (at 330) that near certainty is the medical standard of causation while the legal standard requires only a 51% probability.  He concluded that a firm medical opinion is not required to establish causation in law.  Rather, causation is a question to be determined by weighing all of the evidence in order to determine whether a causal link has been established on a balance of probabilities.

[215]    I am not persuaded that the trial judge erred in the manner asserted by these plaintiffs.  He adopted the correct approach when he quoted (¶ 369) from Sales v. Clarke (1998), 57 B.C.L.R. (3d) 36 ¶ 16 (C.A.): “Well-settled law requires proof of causation for a past loss on a balance of probabilities.” His reasons disclose that he examined and weighed the evidence, accepting some parts of it and rejecting others, and that he drew appropriate inferences from the evidence that he accepted.  In my view, he applied the balance-of-probabilities standard in the proper way.

[216]    The true substance of this submission is the complaint that the trial judge did not accept the opinions of the plaintiffs’ expert medical witnesses.  It should be noted, however, that he did not accept the opinions of the defendants’ experts in their entirety, either.   In his general comments on the expert evidence, he said:

[346] In arriving at their opinions on matters of causation, the expert witnesses in the case at bar had to consider four general classes of factual evidence:

(1)   Evidence concerning the plaintiffs’ background and life experiences prior to the commission of the sexual assaults;

(2)   Evidence concerning the nature and particulars of the sexual assaults;

(3)   Evidence concerning the plaintiffs’ life experiences generally contemporaneous with the commission of the sexual assaults;

(4)   Evidence concerning the plaintiffs’ life experiences subsequent to the commission of the sexual assaults.

However, the facts on which many of the opinions were based were not consistent with the trial evidence.  Many of the opinions provided by the expert psychiatric/psychological witnesses as to the causes of the plaintiffs’ psychological conditions were based on facts that were not proven during the course of the trial.

[217]    In weighing the evidence in this way, the trial judge was properly performing his function as the trier of fact in this case.  As I am unable to discern any error in his approach to past pecuniary losses, I would reject the submission that he erroneously required these plaintiffs to meet a scientific standard of causation.

[218]    I turn now to the submission that the trial judge erred in respect of these plaintiffs in his consideration of their claims for future loss of opportunity.

[219]    This claim requires a comparison of what the plaintiffs’ earning capacities would have been in the future but for the sexual assaults, and what it will in fact be as a result of those assaults.  A consideration of impaired earning capacity involves the factors outlined in Brown v. Golaiy, supra ¶ 8, which were approved in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 ¶ 25(C.A.):

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case.  Some of the considerations to take into account in making that assessment include whether:

1.    The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.    The plaintiff is less marketable or attractive as an employee to potential employers;

3.    The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.    The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[220]    The trial judge found that the sexual abuse was a cause of F.L.B.’s present personality disorder, which manifests itself in “problems in maintaining inter-personal relationships, difficulties in managing his anger and impulses, coupled with a sense of impaired self-esteem and difficulties in formulating an identity” (¶ 506).  The manifestations of F.L.B.’s personality disorder call into play the factors enumerated in Brown v. Golaiy.  The trial judge recognized that these difficulties would continue into the future when he made an award for future counselling sessions (¶ 535). However, there is no indication in his reasons that the trial judge turned his mind to the question of impairment of earning capacity and to the factors mentioned in Brown v. Golaiy.

[221]    The trial judge concluded that, because of an unrelated physical disability, F.L.B. was precluded from working at his former career as a logger and that he lacked the intellectual capacity to retrain for less physically demanding jobs (¶ 528).  However, the trial judge overlooked the reality that F.L.B.’s psychological injury would, at least for a period of time in the future, foreclose for him some occupations that might otherwise be available: see Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 at 59 (C.A.).  I think that the trial judge erred in doing so and that an award for loss of future opportunity is warranted.

[222]    The trial judge awarded $5,000 for future psychological counselling in relation to anger management, relying on Dr. O’Shaughnessy’s “quite positive” prognosis for this condition following twenty or thirty sessions.  The evidence does not permit a nuanced evaluation of F.L.B.’s impairment of earning capacity and, in my view, further evidence is unlikely to assist.  I think that F.L.B. is entitled to a conventional award under this head and I would fix it at $20,000.

[223]    R.A.F., sadly, can see only the presence of light.  This is a result of a condition known as retinitis pigmentosa, with which R.A.F. was born (¶ 557).  The trial judge concluded that, if he ever suffered from a psychiatric condition caused by the sexual abuse, R.A.F. has recovered and that, at the time of trial, he had no psychological condition that would require therapy (¶ 589, 596).  He concluded that the sexual abuse had contributed to periodic bouts of depression experienced by R.A.F. (¶ 599).  However, in respect of pecuniary loss, he said:

[576] [R.A.F.] says that as a result of his declining grades after the sexual assaults started, he was transferred from the academic to the much easier commercial program.  He says further that had he remained in the academic program that academic accreditation would have resulted in increased lifetime earnings.  I am unable to find that link in the evidence.

[577] Since completing high school Mr. R.F. has been engaged full-time in activities which he has enjoyed.  Some of these were formal jobs, some were volunteer positions and some were in furtherance of his personal goals at the time.  In light of this it is difficult to conclude that the sexual assaults which were inflicted on Mr. R.F. by Plint at AIRS had any effect on the amount of income which he has earned over his lifetime.  As Mr. R.F. said, “Well, I’ve always considered myself able to work”.  From his own evidence and to his credit, he has occupied himself “pretty much full time” in activities which he has enjoyed and which have provided him satisfaction throughout his adult life.

[224]    The trial judge concluded (¶ 601) that R.A.F. had not proven a “future income loss.”  As in the case of F.L.B., however, there is no indication that the trial judge turned his mind to the question of impaired earning capacity.  Nevertheless, given the trial judge’s findings that R.A.F. suffers from no continuing effects of the sexual abuse, an award of damages for impaired earning capacity cannot be justified.

[225]    The trial judge concluded that, although he has ongoing psychological problems, M.W.(2) did not prove that they were caused by the sexual abuse (¶ 922).  In my view, that finding precludes an award of damages for impaired earning capacity.

[226]    P.D.S. contends, as I understand his submission, that the trial judge misapprehended the evidence when he refused to award damages for past loss of earnings.  He submits that he was suffering from a significant depression caused by the sexual assaults and that, as a result, he persisted in an unsuitable educational upgrade program.  Once he abandoned this course after three years and enrolled in an appropriate program, he found employment almost immediately.  Thus, he contends, he should have been awarded damages for income lost during those three years and during the ensuing delay in reaching full-time status after qualifying for his present job.

[227]    This claim was based on the opinion of Dr. Colby that the sexual assaults inflicted upon P.D.S. caused his depression.  However, the trial judge rejected Dr. Colby’s opinion that P.D.S.’s psychological problems were caused by the sexual abuse (¶ 765) and concluded that P.D.S. had failed to prove any income loss (¶ 767).  These are findings of fact and are based on the trial judge’s view of the evidence.  I see no error in principle or any other basis upon which we could interfere. I would reject P.D.S.’s submission on this ground.

4.    Summary

[228]    In the result, I would allow F.L.B.’s appeal to the extent of awarding him damages for impairment of earning capacity in the amount of $20,000.  I would otherwise dismiss all of the appeals.

“The Honourable Mr. Justice Smith”

I Agree:

“The Honourable Mr. Justice Low”

Reasons for Judgment of the Honourable Madam Justice Saunders:

[229]    I have had the privilege of reading in draft the reasons for judgment of Mr. Justice Esson and Mr. Justice Smith.  I concur with those reasons in all aspects except as to the award of non-pecuniary damages to R.J.J. and M.W.(2) discussed at paras. 205 and 207-209 respectively.  The learned trial judge awarded R.J.J. $20,000 and M.W.(2) $15,000, for non-pecuniary and aggravated damages.  With respect, I consider those two awards to be inordinately low in the circumstances of the wrongs committed, and considering previous awards in cases of sexual assault of a child.

[230]    Central to my conclusion is the nature of the assaults upon these two young males, their young age and their dependent relationship to the school and its staff.  While the learned trial judge found that neither of these two plaintiffs had proven long lasting (into adulthood) serious psychological damage consequent on these assaults, that is not the end of the issue.  The question is their pain, suffering and loss of enjoyment of life, including as a child.  One of these intangibles is the irrevocable and serious interference with their childhood, and humiliation to each as a child.

[231]    Macfarlane J.A. in S.Y. v. F.G.C. (1996), 26 B.C.L.R. (3d) 155, recognized at para. 58 that the age of a complainant, the nature of the abuse and the relationship between the parties may be aggravating factors.  All of those factors are at play in these two cases.  In this I distinguish the case of P.D.S. who, in the finding of the trial judge, was wrongly touched, but only by Mr. Plint placing his hand on his genitals area over his clothing.  While that behaviour was seriously wrong, it is significantly less egregious than Mr. Plint’s behaviour to both R.J.J. and M.W.(2).

[232]    Mr. Justice Smith described Mr. Plint’s conduct towards these two plaintiffs.  I would add only that the trial judge also found that Mr. Plint threatened R.J.J. against disclosure, causing fear.

[233]    In my view, the sums awarded to these two plaintiffs fail to adequately recognize the aggravating factors of Mr. Plint’s position as a member of the school staff charged with educating and housing them, their young ages and the nature of the sexual liberties taken by Mr. Plint with them, and are inordinately low.  I would award R.J.J. $35,000 and M.W.(2) $25,000, in non-pecuniary, including aggravated, damages.

“The Honourable Madam Justice Saunders”

I Agree:

“The Honourable The Honourable Mr. Justice Esson”

I Agree:

“The Honourable Mr. Justice Hall”