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.