Date: 19990830 Docket: 7838 Registry: Smithers IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: FLOYD STEPHEN MOWATT, SR. PLAINTIFF AND: DEREK CLARKE, THE ANGLICAN CHURCH OF CANADA, THE GENERAL SYNOD OF THE ANGLICAN CHURCH OF CANADA, THE ANGLICAN DIOCESE OF CARIBOO, THE SYNOD OF THE DIOCESE OF CARIBOO, and HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF INDIAN AND NORTHERN AFFAIRS DEFENDANTS AND: DEREK CLARKE, THE ANGLICAN CHURCH OF CANADA, THE ANGLICAN DIOCESE OF CARIBOO, HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF INDIAN AND NORTHERN AFFAIRS THIRD PARTIES REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE DILLON Counsel for the Plaintiff: Peter Grant Allan M. Early Counsel for the Defendants, The Anglican Church of Canada The General Synod of the Anglican Church of Canada,The Anglican Diocese of Cariboo and The Synod of the George E.H. Cadman, Q.C. Diocese of Cariboo Heather D. Craig Counsel for the Defendant, Her Majesty the Queen in Right of Canada Mitchell Taylor as represented by the Minister of Indian Judith Mules and Northern Affairs: Susan E. Dawson Place and Dates of Hearing: Smithers, B.C. May 27-29, 1998, Vancouver, B.C. June 1-5, 1998, June 8-10, 1998, June 12, 1998, June 15, 1998, June 17-19, 1998, June 21, 1998, September 28-30, 1998, October 21, 1998. I N D E X PAGE I. INTRODUCTION 2 II. FACTS 3 1. THE SEXUAL ASSAULTS: THE BOYS' PERSPECTIVE (a) Home away from home 3 (b) Sexual assaults of the plaintiff 7 (c) The secret world 8 (d) Disclosure and coverture 10 2. ST. GEORGE'S INDIAN RESIDENTIAL SCHOOL: 1901 TO 1969 18 (a) Early history and missionary work of the church 18 (b) Government involvement - fulfillment of legal obligation 29 (c) Association and co-operation 34 (d) The principal's role: "two hats" 42 (e) The employment of Clarke 45 3. ST. GEORGE'S INDIAN RESIDENTIAL SCHOOL: THE 1969 TRANSITION AND BEYOND 47 (a) The change 47 (b) Preservation within change 52 (c) Apology 58 III. POSITION OF THE ANGLICAN DEFENDANTS 59 IV. POSITION OF CANADA 60 V. VICARIOUS LIABILITY 61 1. Employers' Liability for the Acts of Clarke 61 2. Who was Clarke's Employer? 70 VI. NEGLIGENCE 82 1. The Duty of Care 82 2. Breach of Standards of Care 90 3. Apportionment of Fault in Negligence 95 VII. FIDUCIARY DUTY 96 VIII. THIRD PARTY PROCEEDINGS 103 IX. CONCLUSION 106 I. INTRODUCTION [1] From 1969 to 1976, Floyd Mowatt, Sr. resided at St. George's Indian Residential School in Lytton, British Columbia. From 1970 to 1973, Floyd Mowatt, Sr. was repeatedly assaulted sexually by his dormitory supervisor, Derek Clarke. This case will determine whether the Anglican Church of Canada, The Anglican Diocese of Cariboo or Her Majesty the Queen in Right of Canada are responsible for what happened to Floyd Mowatt, Sr. [2] The plaintiff has claimed against the defendants for negligence, breach of fiduciary duty, and vicarious liability arising from the parental role undertaken within St. George's Indian Residential School for the care of the plaintiff during his residency. Floyd Mowatt was 9 years old when the assaults began. Derek Clarke (hereafter "Clarke") pleaded guilty to sexual assault of the plaintiff, among other boys at the residence, and is imprisoned. This case is not about him. The Anglican defendants and Canada deny any responsibility for Clarke's actions. Each blames the other, claiming that it was the other who was "on watch". Damages have been agreed. This case is about liability of the Anglican Church and the Government of Canada. [3] Was anybody "on watch"? Who? [4] Much of the evidence adduced at trial was hearsay, either from persons deceased or otherwise unavailable and from ancient documents. It was agreed that this evidence was admissible as satisfying the criteria of necessity and reliability, with appropriate weight to be determined by the trial judge (R. v. Khan, [1920] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915). There were many documents entered into evidence under the ancient documents rule, none of which were alleged to be suspicious. (Delgamuukw v. Attorney General of British Columbia (1989), 38 B.C.L.R. (2d) 165). II. FACTS 1. THE SEXUAL ASSAULTS: THE BOYs' PERSPECTIVE (a) Home away from home [5] St. George's Indian Residential School was located three miles from Lytton, B.C., in a rural isolated setting. The buildings consisted of a large residence and school with a remarkably lovely chapel attached. Nearby were farm buildings, fields, and various outbuildings. The main building had a large white cross on the outside and the chapel had stained glass windows. It was a non-sectarian school and so exempt from public school legislation. St. George's was also an Anglican parish within the Diocese of Cariboo. [6] The students came from native communities, ostensibly for schooling and religious training. Attendance and residency was mandatory for the children as there was a requirement to attend school as designated by the Minister (Indian Act, R.S.C. 1952, c. 140, s. 115). Parents were threatened with jail or fines for failure to send children to school. Most of the students, including Floyd Mowatt, were unaware or non-practising Anglicans, although there were some children of other religious backgrounds. [7] Upon arrival, the immediate impression was of a religious institution run with military precision. There was a welcome by the principal in religious garb followed by immediate indoctrination into a routine of daily prayer, military style housekeeping, and regimented activity. Uniform clothing was distributed. Chores including washing floors were allocated, sometimes as discipline. Prayers were said at meals, in the morning, and at night. Church service on Sunday was mandatory for both students and staff. All students were expected to be confirmed in the Anglican faith following special religious instruction. The confirmation service with the presence of the bishop was an important yearly event. Other memorable events at the school were mostly associated with the arrival of important Anglican personnel, particularly the bishop whose chair in the chapel symbolized his continuous presence at the residence. There were religious pictures on the walls and the Queen featured in every classroom. Boys and girls were separated with little interchange. Family exchanges between siblings was discouraged such that brothers and sisters did not speak to one another. [8] Most boys, including Floyd Mowatt, remained at the school throughout the year except for the summer. However, Mowatt did go home some weekends. [9] The dormitory supervisors oversaw all of the boys' activities from the moment that each awoke until bedtime except for school instruction. They were on duty for 24 hours, residing in rooms near the dormitory. Their duties included: supervising prayers throughout the day; escorting to meals; supervising daily and weekend chores; ensuring personal and environmental hygiene; supervising homework and play time; putting to bed at night; enforcing discipline; taking on outings; and ensuring attendance at church service. Treats from parents were stored and allocated by the dormitory supervisor. Discipline including strapping was done by the supervisor sometimes in the dorm and sometimes in the principal's office. Failure to follow daily prayers or attend religious services was cause for discipline. [10] Derek Clarke was the junior intermediate boys' dormitory supervisor. Most boys stayed in his dorm for three years before moving to the senior intermediate dorm. He wore ordinary clothing. In his room next to the dormitory, he had a large record collection which attracted the boys. [11] The boys understood that Clarke's "boss' was the principal. He was known to look in at the dorms once in awhile but was not regularly there. Visits by the bishop were a major event that heightened in the boys' minds that the bishop was the principal's boss. The principal gave religious instruction to the students. The local Anglican priest from the Lytton parish attended frequently at the school. [12] Floyd Mowatt entered St. George's in September 1969 when he was eight years old. He had been living away from his mother and father for several years in foster homes. There was a familial history of alcoholism and abuse. Placement of Mr. Mowatt at St. George's was determined by the local Indian agent from the Department of Indian Affairs. Floyd Mowatt's mother took him to the bus in Hazleton, near his family home, along with his brother and several other children, all bound for St. George's school. Prior to the admission of Floyd Mowatt to St. George's, his mother signed the Department of Indian Affairs application form and gave guardianship of Floyd to the Crown until his return to her custody. Ella Mowatt did not state a religion for Floyd on the form. There was no consultation with any church representatives prior to admission of Floyd to the school. [13] Floyd Mowatt's first memory of St. George's was of the principal, he thought Harding, on the school steps and a large white cross. His brother recollected that the principal was Colin Bramwell who appeared in priestly robes. [14] During the 1960's, the higher school grades were integrated into the provincial school system so that the older children were transported to public school in Lytton. Grades one to five remained at St. George's until 1970 when St. George's Indian Residence ceased to operate as a school altogether. Residential life remained the same, except that there were fewer hours spent at the residence. Religious instruction also remained for grades one to six. (b) Sexual assaults of the plaintiff [15] Clarke began his assaults upon the plaintiff with fondling under Mowatt's blankets in the dorm in the early morning as he "checked for things'. All other assaults occurred in Clarke's room which was adjacent to the dorm. On the second occasion, during the study hour, he removed the plaintiff's clothing and, turning the plaintiff towards the wall, proceeded to place his penis between the plaintiff's lubricated legs. On the next occasion, also at study hour, he sodomized the plaintiff regardless that the plaintiff tried to pull away. On the fourth occasion, Clarke forced the plaintiff to perform oral sex upon him. The plaintiff did not remember specific incidents after that but thought that the assaults lasted for two years. (c) The secret world [16] Other boys were sexually assaulted by Clarke in the junior intermediate dormitory. Five of them testified before me. None were challenged about what happened. None of them told the others about what had occurred; but, it was the known subject of ridicule, jokes, innuendo and nick-names. Clarke had a reputation amongst the students as "doing things to young boys' and some boys who were known to have been assaulted were teased as "Clarke's boys'. [17] Clarke would line the boys up outside his room after bath in the evening and inspect each to see if he were clean. This included display of the penis. The last boy was often favoured for the night or Clarke would bring one boy into his room in pajamas while the others watched TV. Sometimes he took a boy into his room in the early morning. At other times, he kept a boy in his room, ostensibly to be cleaning. There, he kissed, caressed, sexually stimulated, performed oral sex, forced oral sex on himself and sodomized the boys. [18] Clarke's sexual misconduct began not long after he came to St. George's as indicated by T.A. who testified that Clarke's assaults on him began when he was in grade 3, thus placing the timing of the assaults about the time that Clarke came to St. George's in 1965. Clarke was at the school for eight years. Clarke's sexual misconduct occurred with incredible frequency as the men who testified said that this occurred to them twice or three times per week, once a week, often. It also occurred during the summer if the boy remained behind. It was part of life there; it was accepted because Clarke was the supervisor. [19] Clarke told each boy not to tell anyone. He gave his favoured boys chocolates, pop, gum and weekend trips. When he took a boy away from the school for a weekend trip, sexual assault occurred in motel rooms. These trips required the permission of the principal. [20] Clarke was not always successful in his entrapment. One man described attempted kisses and fondling that resulted in a fistfight in the dorm and Clarke being called a "faggot". No discipline resulted: nobody said anything. [21] But, certain of the boys' behaviour revealed these secrets. Teachers at the Lytton Elementary School were aware of many incidents on the playground where the boys spoke of "bum holing", rode each other like dogs engaged in sexual acts, and grabbed at the others' genitals. Some of the boys knew of sexual assaults upon others. There was ridicule and jokes. It is inconceivable that this behavior was not apparent at St. George's. (d) Disclosure and coverture [22] Harding was told about Clarke's sexual assaults in May 1973. [23] Joseph Chute, the principal of the Lytton Elementary School and a 23 year member of the small local Anglican parish, said that Harding came to him with information about a boy, E.D. However, one of the teachers at the school at the time testified that she had overheard certain boys talking about a dormitory supervisor "doing things to boys'. She said that she immediately went to Chute, the principal, and told him to take the boys out of class and question them. She said that he did so and that Harding came to the school. This is probably what happened as there is no suggestion that any of the boys initiated the disclosure and Chute's memory was notably deficient. Harding and Chute were friends as Harding came to the school once every week or two to discuss events involving St. George's students. They also knew one another through the local Anglican parish and were social leaders in the Lytton community. [24] Harding and Chute interviewed some of the boys. With Harding and Chute's secretary in an adjacent open room, Chute called E.D. and at least two other boys into the Lytton school principal's office. Harding did the talking and asked what Clarke had done to them. They told about the abuse and gave the names of other boys known to have also been assaulted. [25] Chute did nothing as a result of these reports. He did not inform the boys' parents, teachers, or social workers. I reject Chute's evidence that he involved the counsellor or that only one boy reported to him. Chute gave contradictory statements about who he told. The teacher did not support his testimony that he told her. Further, there were two men other than E.D. who testified before me about telling Chute. I accept their testimony. Chute explained in testimony at trial that Harding told him that it was unnecessary to report the matter to police because the Department of Indian Affairs "had ways of dealing with such cases'. Harding later told him not to worry about it. Chute said that he did not consider it his role to report because the incidents had not occurred at his school. However, he was assured by Harding that proper procedures were undertaken and said that he would have reported to police if he had thought that this was not the case. [26] Mowatt was summoned to Harding's office at St. George's. Harding asked about what was going on. Mowatt told Harding that Clarke did "things to him that boys do to girls'. Harding pressed for details but Mowatt was too scared to give details. There was another person in the room as Mowatt spoke who remains unidentified. Harding appeared to take notes. Mowatt said that Harding told him that he would give the paper with his notes to the proper authorities. This was never done. Mowatt could not place this event in time related to Clarke leaving the residence. It is possible that this occurred before the revelations to Chute; however, it is more likely that Mowatt was called in after the disclosures at the local school. [27] On May 17, 1973, Harding told Clarke that he had received a complaint of a sexual nature. Derek Clarke testified that Harding told him that he could either resign or the police would be called. Nothing more was said. No questions were asked. Harding, however, testified at his own criminal trial that Clarke had denied the allegations and that Harding had told him that he was suspended pending further investigation. Clarke left within the half hour. His letter of resignation cited "personal reasons'. Harding wrote a letter of recommendation for Clarke later that month expressing appreciation for past services in child care and expressing hope that his "personal problems' would be cleared up. There was no further investigation. [28] Harding also wrote to the Department of Indian Affairs at the end of May to inform of Clarke's 'resignation'. No specifics were given. The department was never informed about Clarke's sexual misconduct even though serious disciplinary matters with respect to staff were to be reported in the quarterly or annual reports to the department. [29] It appears that Harding told Rev. Dixon, the chaplain and local pastor, about these events. Given that Chute was also involved, was a friend of Harding's, and was very active in the church, it is probable that the residence chaplain was informed. This is confirmed by information that Harding and Dixon both informed the bishop. Although this evidence is hearsay, it is the best evidence available, is reasonably reliable and is the most probable given that the information was now known within the small Anglican community. [30] There was controversy about whether the Bishop of the Cariboo was informed of Clarke's misconduct. The present Bishop of Cariboo, Bishop Cruikshank, testified that he was informed by Archdeacon White that the bishop was informed by both Harding and Dixon. Archdeacon White was in the diocese at the time as a theological student. He became pastor of the parish in Lytton in 1978 and was familiar with the history at St. George's. Archdeacon White was good friends of both Harding and Dixon. Bishop Cruikshank considered Archdeacon White a reliable source who informed Bishop Cruikshank that he received this information from Harding and Dixon themselves. Harding, Dixon, and the bishop of the day are now all deceased. Bishop Cruikshank also assumed that the bishop would have been informed very quickly and thought it "unimaginable" that the bishop would not have been told. While the Anglican defendants submitted that this question is left unanswered, I have concluded that the circumstances indicate that the bishop was most probably informed about the time that Clarke was dismissed. [31] The incidents were known by the staff at the Lytton Elementary School and some local parishioners. The bishop would have to have been informed because the knowledge was spread to others within the Anglican community at Lytton. The only reason why he might not have been told is because Harding had something to hide himself. However, others within the church, particularly Chute, already knew and Harding was very close to the bishop of the time as disclosed in correspondence. There is nothing to suggest that Harding perceived any danger to himself. In fact, this proved to be the case because Harding continued to be promoted through the religious ranks of the Anglican Church. He was made a deacon in October 1973 and became a priest on May 11, 1975. Most significantly, there was no investigation at St. George's. [32] Harding did not bring this matter to the attention of the advisory committee of St. George's when it met for the first time on May 27, 1973 even though the matter of staffing of child care workers arose. Harding did report in writing to the advisory committee in December 1973 that three staff members had been removed, two as a "result of misconduct". This report went to the Anglican Church representatives who were on the committee, including the chaplain of the school. It was copied to the Department of Indian Affairs. [33] Nothing was done. The parents were not informed. None of the boys received counselling or parental or spiritual assistance. Nobody made further inquiry. [34] While Harding was principal, he had rooms adjoining the residence. Certain senior students were known to hang out in his rooms where he provided alcohol and games. Some of them were taken on weekend trips with Harding to Kamloops, a real treat. Harding also sexually assaulted male students at St. George's. Certain men testified about these events before me and were not cross-examined on this evidence. Although Harding denied this and was acquitted of sexual assault following trial, it is not known who testified against Harding at his trial. I accept the otherwise uncontradicted evidence of those who testified before me. [35] J.M. testified that after watching others favoured to be taken away from Lytton for the weekend by Harding, he was finally taken by Harding to Kamloops. Harding secured a motel room with one bed. Alcohol was left for the underage youth while Harding went out for a while. When he returned, Harding came to bed naked and attempted to fondle J.M. who grabbed his hand and said 'stop". Nothing further happened. There were no more trips for J.M. He told nobody. It is uncertain whether this event occurred before or after Clarke had left St. George's. [36] Some few years after telling Harding and Chute about Clarke, one of the boys who had confessed was sexually assaulted by Harding. The St. George's principal, by now an Anglican deacon, contrived to have the boy stay in his room at St. George's for the night. Harding had oral sex and sodomized the boy. He came another time to the boy's room to do the same thing but the boy started to cry and told him not to. [37] Many years later, Harding appeared in Mowatt's village and invited the plaintiff to his hotel room to talk. When he arrived, Harding had a shower, came out naked, invited Mowatt to join him in the shower and opened up a briefcase of alcohol. Mowatt left. This evidence was uncontradicted. [38] The involvement of Harding in sexual misconduct and his failure to do anything for the boys as a result of their disclosures leads to the obvious inference that he did not care about Clarke's behavior as long as it was not known. He must have observed the same conduct amongst the boys as seen by the Lytton Elementary School teachers. He must have heard similar gossip. If he didn"t, he was blind to it. The fact that he did not tell the department about the reason for the 'resignation', even though he told Chute that he would do so, indicates that Harding did not want an investigation at the school. The offer of resignation to Clarke, the failure to advise parents, and the characterization of the departure as "misconduct" related to "personal problems' was clearly intended to hide the truth about why Clarke left. [39] The coverture with respect to Clarke is in contrast to the handling of sexual misconduct by another child care worker earlier that year. Harding had warned the unidentified staff member the year before about a "crush" that one of the senior girls had on him. He wrote then to express concern that while his personal affairs were his own business, this changed when two of the girls were in the care of Harding as their "legal guardian". In March 1973, a thirteen year old female student was missing from the dormitory and found in bed with the child care worker after a search of the school. The student acknowledged that sexual intercourse had occurred with the staff member. The incident was common knowledge at the school. The staff member was asked to resign and did, citing personal and family reasons. The student was taken to medical services. Harding wrote an explanatory letter to the federal co-ordinator of student residences, pointing out that the staff member had been previously warned that such conduct between students and staff was not acceptable. Harding also wrote a letter to the staff member acknowledging his past services and expressing confidence that he would soon find employment suited to his "undoubted abilities'. There is no evidence that the Department of Indian Affairs became further involved in these events other than to be informed. [40] In March 1973, there had been four staff changes at the school, all reported to the federal representative. Clarke's "resignation" followed in May 1973. It is not known why Harding did not inform the federal representatives why Clarke left. However, it can be concluded from Harding's failure to report to federal or police authorities that he did not want an investigation at the school. Following so closely upon the sexual misconduct of another staff member, this would most likely have occurred. These events took place at a time when other residences were being closed and concern had already been expressed by diocesan authorities that this not happen to St. George's. It is my conclusion that Clarke's sexual assault of the plaintiff was purposefully covered up by Harding and the diocesan personnel who were in the know so as not to attract attention to St. George's school. 2. ST. GEORGE's INDIAN RESIDENTIAL SCHOOL: 1901 TO 1969 (a) Early history and missionary work of the church [41] The Anglican Church had a "Christian responsibility to help the First Nations assimilate into the cultural, political, economic and social structure of the British Empire. Education and converting children ...[was] a key component in meeting this responsibility". By the mid nineteenth century, the policy had shifted significantly to the conversion of children, rather than adults, so that Anglican residential schools were seen as the primary instrument of accomplishing this Christian goal. [42] The Anglican Church through its predecessor, the Church of England, became involved in the Lytton area of British Columbia in 1859 when the first Anglican mission was started. The pastor of the Lytton parish began a school for native boys in 1867 to further accomplish the missionary work of the church. A girls' school was begun by Anglican nuns in nearby Yale in 1884. At the request of the Bishop of New Westminster whose diocese included Lytton at the time, St. George's Anglican school was founded in 1901 by the New England Company. [43] The New England Company ("NEC") is the oldest missionary society of the Church of England. It was in Lytton to bring the gospel as taught by the Anglican church to the Indians. The Anglican defendants in this case have carefully pointed out that the New England Company was legally separate and apart from the Anglican Church in Canada, known as the Church of England at the time. However, the Anglican Church and the local diocese at all times worked cooperatively with the missionary work of the church through whatever organization and supported the work as its own without apparent distinction. The NEC founded two residential schools for Indian children: St. George's in Lytton and the Mohawk Institute in Brantford, Ontario. While the NEC operated with separate governorship from the Church of England, their work was intricately and practically linked to the Anglican Church in Canada and fulfilled the Anglican church's missionary responsibility towards Indians in the regions serviced by these schools. [44] The objectives of St. George's included instruction of the boys in basic English, math, and science and training in carpentry, blacksmithing, metal work and carpentry. As it was intended that the school be as self-supporting as possible, the schools' farm was productive with the assistance of the students who, until the 1950's, provided daily farm labour. The chapel, originally constructed in 1906, was the focal point for teaching of Anglican doctrine and tradition. The girls' school was assimilated in 1917 when a new dormitory was built. Funding for the school came from farm production and grants from the NEC. The principals of the school were Anglican priests. While the school may have been modelled upon the English private school, it was very much an Anglican institution. [45] The Anglican Church in Canada was incorporated separate from the Church of England in 1921 by statute of Parliament. This created a body corporate with general power to do all lawful acts incidental or conducive to attainment of its objects. The church in Canada is a composite body, a "confederation", a "fellowship", of all of the dioceses, each of which is independent of the central church. The Diocese of Cariboo became a member of the General Synod of the Church of England in Canada through participation of its Bishop. The Missionary Society of the Church in Canada ("MSCC") was established by the Anglican Church in Canada to assume the missionary work of the church in Canada, including the administration of Indian residential schools. [46] The Diocese of Cariboo was established by provincial statute in 1915. It is a corporate body with power to contract, sue and be sued. It is governed by a synod made up of representatives of parishes within the diocese which meets every two years. In the meantime, the bishop and executive council manage diocesan work. The diocese is separate from the Anglican Church of Canada and autonomous. St. George's was at all times a parish within the Diocese of Cariboo and sent two delegates, including the school principal, to synod. [47] By 1921, the New England Company faced financial difficulty in the operation of the school and entered into an agreement with the government of Canada in 1922 for the lease of the buildings and lands. The government leased the lands and premises and paid rent to the NEC upon the following conditions: the school would be continued, the pupils would continue to be trained in the teachings of the Anglican Church, the NEC would continue to pay towards the stipend of the principal and maintenance of the school, and, most importantly, the principal would continue to be a clergyman of the Anglican Church and would be appointed by the government only with prior written approval of the New England Company. [48] In 1922, it was recognized in minutes of the board of management of the MSCC that St. George's had traditionally been conducted in affiliation with the Church of England but maintained by the NEC. As at September, 1922, the school was maintained by the Department of Indian Affairs assisted by a grant from the NEC. It was hoped that negotiations would lead to all schools being taken over and administered by the MSCC with per capita funding by the government. This was still unresolved in 1934 when the Bishop of Cariboo reported to the MSCC that he had opposed the society taking control of St. George's in 1922 because of problems there and that the society had decided not to accept any responsibility for the school as a result. However, the principal of St. George's was described as having "practically absolute power in the management of [the institution], and staff agents may be engaged or dismissed as they see fit". There was no requirement to refer dismissals to the Commission of the MSCC for approval. As a result of the distance of the NEC and the failure to bring St. George's within the MSCC web of schools, the Bishop of Cariboo had greater practical independence in the operation of St. George's school than most other Anglican residential schools that came under the supervisory umbrella of the MSCC. However, all diocesan bishops were directly responsible for religious education within the diocese after 1924 and the religious authority of the Bishop of Cariboo was no different than other bishops whose diocese included a MSCC school. [49] When a new school had to be built, funding was sought from the government. This resulted in an agreement to sell the school lands outright to the government in exchange for payment and building the new school. The government bought the lands from the New England Company in 1927 for less than valuation in exchange for the government promise to continue the school for Indian children and to train them in the Anglican church. Although this agreement for purchase did not include the specific provision that the principal would continue to be an Anglican clergyman appointed by the government only after prior written approval by the church, this practice continued. The agreement also did not include that the NEC would continue annual financial contributions: but, this practice also continued. [50] Letters of understanding prior to the 1927 agreement indicated that the NEC and the government had reached agreement on the purchase of the lands in order to facilitate the government paying for the building of a new school. It was also stipulated in these letters that both parties wanted the other to remain associated in the management of St. George's after the agreement. It was understood prior to entering into the purchase agreement that both would remain associated in the conduct of the school. The purchase of the land and financing of new buildings was treated separate and apart from the operation of the institution. This was evidenced in the plan to keep the continuing maintenance payments received from the NEC separate from principal and interest, to be paid under the purchase agreement rather than treated as a set-off. The government specifically wanted the NEC to continue its grants and its association in the conduct of the school indefinitely. The Department said that it intended to continue to have the position of principal filled by a clergy of the church. I do not accept that there was no longer a binding agreement to continue with this term. This agreement for the operation of St. George's continued separate and apart from the land purchase agreement of 1927. [51] During the interval from 1922 to 1969, the NEC continued its involvement with St. George's school. It paid to move the chapel to the new school site in 1929 and continued general funding in support of the school. Funds were given directly to the government department who approved dispersal of the funds for specific purposes such as rebuilding barns, purchasing cattle, supplying equipment. Notably, these reflected traditional use of denominational funds. However, the NEC also gave funds directly to St. George's from time to time as indicated in correspondence and in 1955 agreed to give the grant directly to St. George's because of departmental delay in transmitting the funds to St. George's. The NEC was kept informed of the situation at the school through the Bishop of Cariboo. Although the NEC did not participate in the life of the school in a direct sense, it continued to formally nominate the principal of the school after receiving an approved list of candidates from the Bishop of Cariboo. In fact, the principal was chosen through the network of Anglican residential schools operated by the MSCC with the Bishop of Cariboo assuming direct control over who would be nominated as the principal of St. George's in consultation with other Anglican personnel from the various Anglican establishments. [52] The principal of the school was historically appointed by the New England Company upon the recommendation of the Bishop of the diocese. The appointment of Anglican clergy as principal of St. George's school was seen as the most important factor to the preservation of the Anglican ethic, standard, and purpose at the school. All principals came from other Anglican residential schools or parishes. This practice continued after the government took over the lease in 1922 and after the government purchased the lands in 1927 even though the government made the final appointment. The MSCC did not participate in this decision directly through its commission because it considered that the school was operated by the Diocese of Cariboo. It did, however, recommend candidates through the network of Anglican residential schools, based upon availability and rotation of candidates through those schools. Because the principal of St. George's had to be a member of the clergy and because a clergyman had to be licensed for the diocese through the bishop, the Bishop of Cariboo held the ultimate key card as to who would be appointed. Every principal appointed to St. George's was licensed through the Bishop of the Diocese either as a priest or as a lay reader at the time of his nomination during his term of office. For all practical purposes, the nomination for school principal came from the Bishop of Cariboo. [53] In practice, the government rubber stamped the chosen principal as selected by the Anglicans and rarely became substantially involved in the appointment. This was so even when the government was of the view that a lay person would be better qualified to take charge of the school. Exceptions occurred in 1941 and 1958 when the department sought the resignation of the principal because of perceived problems at the school. The selection and appointment of a successor was, however, still done through church nomination, co-operation and assistance after informing the NEC. Even though there was no operative written agreement, the superintendent confirmed the arrangement for appointment of the principal in correspondence in 1956 when he said: ... I believe that it has been general practice for the Bishops of the Diocese of Caledonia to nominate the Principal for the St. George's Residential School, although I am not sure that it was done in the case of Canon Hives. There is no intention of changing this procedure. [54] The Anglican Church and particularly the Diocese of Cariboo always considered St. George's to be an important part of its missionary work. The regular reports from the school principal to the synod of the Diocese of Cariboo show that, while it was not considered a diocesan school, St. George's was an important part of the missionary work of the diocese: a "definitely missionary enterprise as well as - the most important missionary work of this diocese" (1946), a "Church school in your midst" (1950). These reports are more detailed and colloquial than any to the government. They include details of the budget, health and moral situation in the school as well as a summary of happenings at the school over the previous year. It is apparent from these reports that maintenance of a high moral standing in the school in terms of its institutional life and routine were considered to be integral to the prevention of serious complications among pupils and staff. The principal considered that the responsibility for staffing the school with zealous Christians belonged to the church (1962). Resentful, delinquent children were considered to benefit from the supervisory staff who stood "in loco parentis' (1964). The church took pride in its ability to demonstrate that it could do a better job than "a purely secular management" (1964) and considered that the success of the work of the church depended upon the quality of the staff (1966). [55] St. George's was apportioned contributory expenses that it paid to the diocese as one of the diocese parishes. Correspondence from the principal to the bishop in 1961 indicates that some of this contribution had come from the government allocated operating expenses in the past. In that correspondence, the principal described St. George's as a 'state-supported church". He objected to the high amount allocated by the diocesan executive committee for the school that year and said that it should not come from government operating expenses. [56] The principal of the school also regularly reported to the Bishop of the Cariboo. Correspondence reveals that the principal was conversational with the Bishop about details of events and life at St. George's including: financial matters, the attitude of the department of Indian Affairs, upcoming appointments, visits of personnel, hiring of staff, and personal plans. The principal also reported annually to the Bishop on the life and work at St. George's. In 1955 correspondence, the principal expressed to the Bishop the superintendent's apparent lack of appreciation of the actual degree of involvement of the church in the school and suggested answers to the bishop as to how the bishop should handle the next appointment of principal. It is clear that the bishop of the day was seen within the church as the broker and decisionmaker between the church and the government about issues involving St. George's. It is also clear that the whole set-up at St. George's was so peculiar as far as the church and diocesan administration was concerned that care was always taken with the approach to the government so as not to lose influence. [57] The Anglican Church of Canada described St. George's in its annual yearbook as: "administered by the diocese" (1940), "administered by the department ... under Anglican direction" (1956-1969), and always as a parish of the diocese (to 1979). The missionary work of the church at St. George's did not end until the school closed in 1979. The school never became a secular school governed as all public schools, a fact noted with pride within the diocese. The Anglicans always considered that the school was under its administration or direction through the Diocese of Cariboo and the principal of the school. (b) Government involvement - fulfillment of legal obligation [58] The Government of Canada had jurisdiction over "Indians and lands reserved for the Indians' pursuant to s. 91(24) of the Constitution Act, 1867. Governmental policy in the 1890's recognized the increasing numbers of native people and governmental responsibility for "their advancement and civilization". Accordingly, the Department of Indian Affairs acknowledged its duty to provide for the education of native children through native schools. Part of the policy called for children, especially boys, to remain in residential schooling until rudimentary education was attained and "their characters [were] sufficiently formed as to ensure as much as possible against their returning to the uncivilized mode of life". [59] By 1894, the Canadian government had assumed responsibility for the education of all "Indian children" (Indian Act, R.S.C. 57-58 Vict., c.32) and authorized the establishment of industrial and boarding schools for that purpose. The Department of Indian Affairs was authorized to provide funding to religious organizations for them to house and educate Indian children as early as 1892. By 1951, Canada was obliged "to establish and operate schools for Indian children" and could do so on its own or enter into agreements with religious organizations for that purpose (Indian Act, R.S.C. 1951, c.29, s.113). The Ministry designated schools for each child based upon the child's religious affiliation. [60] The Indian Act, R.S.C. 1951, c. 29, s. 113, as amended 1956, c.40, s.28 set the modern style for establishment of schools to fulfill the federal government's constitutional obligation as follows: Schools. 113.(1) The Governor in Council may authorize the Minister, in accordance with this Act, to enter into agreements on behalf of Her Majesty for the education in accordance with this Act of Indian children, with (a) the government of a province, (b) the Commissioner of the Northwest Territories; (c) the Commissioner of the Yukon Territory, (d) a public or separate school board, and (e) a religious or charitable organization. (2) The Minister may, in accordance with this Act, establish, operate and maintain schools for Indian children. These provisions continued throughout the relevant periods in this case. There was never cabinet approval for any agreement with respect to St. George's. [61] St. George's Indian Residential School was a school designated for Anglican children. Personnel within the Department of Indian Affairs determined which children would be sent to St. George's without involvement of the Anglican Church or the Diocese or the school principal. [62] When Floyd Mowatt was sent to St. George's in 1969, the policy of the 1890's was still in effect. Mowatt was sent to St. George's in fulfillment of the government's obligation to provide him with appropriate education. The major criteria for admission were lack of day school facilities at home and unsatisfactory home conditions. [63] The admission form of Floyd Mowatt to St. George's in 1969 said: I hereby entrust to the Crown jurisdiction and guardianship of this pupil from the date the pupil leaves his/her home officially in transit to the Pupil Residence and until such time as the said pupil is returned to my custody or some other place as may be authorized by me. Guardianship of this pupil can be delegated by the Crown in providing for this pupil's welfare, education, medical and social engagements. I hereby delegate to the Crown authority to act so far as is necessary for the welfare and behaviour of the pupil, and I further agree to remove said pupil from the Pupil Residence when requested to do so by the Administrator of a Contract Pupil Residence or the Regional Superintendent of Schools in charge of a Government- operated Pupil Residence. [64] The federal government provided most of the funding for St. George's after 1922 with supporting grants from the NEC, some monies from the Diocese of Cariboo, and slight revenue from farm products at the residence. The method and amount of funding to St. George's was always the same as provided to MSCC schools within the Anglican organization. However, the funds were sent directly to St. George's and not to the MSCC. When the system of financing was changed in 1958, the government developed a detailed manual related to financial matters for all funded institutions. [65] Canada also regulated and inspected the physical premises at the school, established regulations for operation of the school and provided instruction and guidance on financial administration. Regulations established in 1953 required the principal to, among other things: make known a set of rules appropriate for the proper operation of the school; supervise the performance of duties by staff; suspend any pupil guilty of conduct "injurious to the moral tone or well-being of the school"; and provide and supervise measures to ensure the health, safety and welfare of the pupils. The regulations also provided that: The principal of every school shall assume the responsibilities of parent or guardian with respect to the welfare and discipline of the pupils under his charge. There is no evidence of any rules promulgated by the principal of St. George's. Nor is there evidence as to what, if any, measures were taken by either the department or the church to ensure that these regulations were followed. [66] The federal government always maintained responsibility for the physical premises at the school after 1927, although the NEC contributed from time to time for specific items such as replacement of the piggery which burnt down. The department supplied the school independent of operating expenses, including religious materials. [67] The policies of the federal department evolved during the period after the Second World War with the integration of Indian children into the mainstream education system and gradual movement away from institutional residential settings to home foster care. This process, however, took time to develop and evolve such that the influence of the denominational institutions gradually declined. By the late 1970's, most Indian residential schools had closed. St. George's closed in 1979. (c) Association and co-operation [68] The principles governing the operation of Indian residential schools were first suggested in 1847 and published in the government's statistical report on residential schools in 1898. This recognized that governmental control was limited to finance and inspection with day to day management of the schools within church authority. Management included the appointment and dismissal of all persons within the institution. Formal agreements were sought to authorize the payment of per capita grants from the government. In the absence of such agreement, correspondence confirmed the nature of the arrangement. Difference in government grants depended on whether lands were owned by the government because the rate did not include building and maintenance costs if the lands and buildings were owned by church authorities. [69] After the great wars, the ability of the churches to fund capital and other costs declined and the assistance of the government increasingly was sought. This is evidenced most dramatically in the assumption by the government of payment for teachers' salaries in 1955. Eventually, many of the institutions were owned and received operating costs from the government with minimal financial participation by the church. However, management was still conducted under denominational auspices dependent upon the religious affiliation of the school. [70] The 1922 and 1927 agreements continued to frame the relationship between the Anglican Church and the government until 1972. This was so despite the fact that the agreements were no longer operative in a strict legal sense. The parties continued to operate between themselves according to the principles of association and co-operation that were traditionally established, that were confirmed when these agreements were negotiated and executed, and that were established in correspondence. Unlike other residential schools administered by the Anglican Church through the MSCC, no express agreement applied to the administration and operation of St. George's school. This, according to 1957 correspondence, made St. George's 'somewhat different" from other denominational schools. However, it was still considered by both the Anglican Church and the federal government to be an Anglican school. Correspondence confirms the nature of the relationship. [71] The government's view of the relationship, as described in 1932, was that the responsibility of the church was different for this school. It remained an institution of the church and received per capita funding like other schools; however, the principal engaged the other employees and paid them without departmental involvement except that the government reserved the right to dismiss for incompetence. Memoranda of 1934 indicated that the department controlled selection of the principal subject to the requirement that he be in the clergy. In 1935, the government stated its view that the school came directly under the control of the department. By 1939, it was clear that the departmental policy and practice was to place St. George's in charge of a clergyman but under the operational control of the department who maintained full responsibility for the appointment and removal of principals in charge. In practice, the cooperation of the church was sought in appointment and in dismissal. In 1956, there was some discussion in correspondence that there was no requirement to place a clergyman in charge at St. George's because there was no such stipulation in the 1927 agreement. However, this strict interpretation of the arrangement between the Anglican church and the government was never practically adopted despite governmental rumblings from time to time. The tradition of agreement through correspondence continued. [72] An example of the relationship between the federal government and the Anglican Church is seen in correspondence regarding removal and appointment of the school principal in 1941. The department had formed the opinion that Canon Lett, the principal, was past his prime and should be removed at the end of the school year. This view was expressed in correspondence to the Bishop of Cariboo, the NEC, and others. Because there was a scarcity of Anglican clergy available because of the war and because imminent resignation of the Bishop of Cariboo disabled him from recommending a replacement, the department went ahead and informed the principal that he was to resign at the end of the school year. Attempts continued to find a replacement suitable to the Anglicans. It was at this time that the MSCC described the school at Lytton as "operated by the Diocese of Cariboo" and recommended someone from one of their schools for Lytton. However, none of the recommended clergy were available. With no nomination forthcoming, the department appointed the senior teacher at the school on a temporary basis in July 1941. In August, a representative of the diocese wrote the acting principal and said: It seems that no appointment of a permanent Principal will be possible before the children return, and we are nominating a clergyman of the diocese as temporary Principal, as the Agreement or Constitution of the school provides that the Principal must be an Anglican clergyman. This is not because of any insufficiency of experience on your part, but at this juncture we have to bear in mind that the Government do not wholly dictate the lines on which the training of the Indians should be undertaken, but that the responsibility is equally ours. With you as Acting Principal the Inspectors and others might try to introduce some changes to which the new Principal would not agree, and so confusion might arise. The Government have the right to criticise our policy, and investigate our method, but Anglican Indian workers are not the employees of the Government. [73] The department agreed to await appointment of the principal until a new Bishop of Cariboo was elected. However, in the meantime, a suitable Anglican clergyman became available from one of the MSCC schools. Canon Hives was appointed in 1941 and remained principal at the school until 1959. [74] Prior to 1952, the principal administered the classroom staff in the determination of hiring and salaries. This was financed through the per capita grant which included an additional ten percent for maintenance and education of the students. Because the salary offered was less than scheduled for teachers, the school operated on a reduced teacher ratio and reduced school days because of the inability to attract and keep teachers. As a result, the department decided to directly employ the teachers at St. George's beginning in 1952 and reduced the per capita grant accordingly. The decision was made within the department without approval of cabinet as would otherwise be required because the school was said to "operate directly under the Indian Affairs branch". This conduct was more akin to a government run institution than an institution run by a religious group according to agreement. However, the principal maintained control over management of the school with the teaching staff hired and paid directly by the government. [75] 1952 also marked the beginning of the policy of integration of Indian students into the mainstream education system. Students in grades seven and above now attended the provincial school in Lytton. This policy expanded to include students in grades six and up by 1963 and grade five and up in 1968. Residential life, however, remained the same with religious instruction now separate from other education. The Diocese of Cariboo still considered that it provided social, religious and other services to Indian children in the region. [76] By 1958, the government recognized that it had taken over operation of the school following the financial difficulty of the New England Company after the First World War but still considered itself bound by an agreement with the New England Company. This agreement referenced the understanding with respect to the appointment of principal of the school and reflected the long tradition of derogation of direct management to religious authority. It was at this time that the government exercised its power of appointment by indicating its view that the long tenured principal should retire. However, this was done with great diplomacy and cooperation as opposed to an open dismissal. The government of the day considered that the school was run under Anglican auspices but not under the supervision of the MSCC. The principal was directly responsible to the department. For this reason, a separate financial file was maintained for St. George's. The Lytton school was, however, treated like all other denominational schools operating by agreement with the department when it came to funding. This was apparent by inclusion of St. George's in the negotiation with denominational schools in 1957-1958 for a new method of funding . [77] The federal department responded to complaints of inadequate funding through the per capita formula and agreed in 1958 to a controlled cost system for all government owned denominational schools as had been established for government owned and operated schools. This system maintained control over the hiring of school and domestic staff with church representatives. Within this system, domestic staff were exempt from unemployment insurance deductions because the institutions were classified as charitable. Each church was given a grant for the overall administration of schools that it operated. [78] The view of the church, as expressed by the principal of the school in a 1975 report to the Bishop of Cariboo, was that the NEC had continued to administer the school and appoint the principal after the agreements through delegation of its authority to the Bishop and to the principal of the school. It was reported that this right continued until 1972. The church continued to have an influential role through the principal who, as a clergy of the diocese, was ultimately subject to the authority of the Bishop. [79] The legal uncertainty created from a lack of written agreements covering the school after 1927 was demonstrated in revealing governmental notes of 1962. It was noted that St. George's had been operating as if the principal of the institution had entered into an agreement within the Indian Act, S.C. 1956, c. 40, s. 113(e) which facilitated agreements with religious institutions upon approval of cabinet. The principal was responsible to the department for administration but had autonomy within internal operations and expenditure of funds. The situation was described as causing considerable difficulty because the position of principal and staff was difficult to define in relation to the government. The author recommended: It is, therefore, necessary that the arrangements for the operation of these particular residential schools be revised so as to establish a proper legal basis within which the operation of these schools can be conducted. In this connection, it is recommended that these schools be operated as departmental units by a staff having the status of departmental employees. This process was not begun until, like all religious residential institutions for native students, St. George's went through the 1969 transition. [80] Because of this unique arrangement, St. George's was different than other Anglican residential schools. The principal and Bishop of Cariboo exercised greater independence and control over the school than in other Anglican schools administered by the MSCC and other government schools. It "fell through the cracks' in terms of formalizing the relationship between the church and the government as to how the school operated, who had final control, and who was ultimately responsible. Neither the government nor the MSCC had the control that either had in other schools. St. George's was left to operate pretty much within the Anglican fold without the formality of attachment to either the church or to the government. For this reason, the practical reality of the operation of the school is most important because of the unwritten agreement about operation. [81] Both the government and the Anglican church considered themselves to administer the school. The arrangement was described as a "partnership", certainly until the end of the Second World War when there was more concern for the separation of church and state and then up to the end of the 1969 transition. Since the end of the war the trend became to integrate Indian children into the mainstream educational system and to gradually reduce the role of both the denominational institutions and the federal government. This process took many years to complete. (d) The principal's role: "two hats' [82] The Minister of Indian Affairs made rules and regulations related to schooling and standards for principals within the institutions. In 1953, these standards required the principal to have acceptable standards with respect to the adequacy and qualifications of school staff, dormitory accommodation, safety precautions, recreational activities, counselling and guidance. The school was subject to inspection by government personnel. The principal was responsible for: assignment of duties to staff, supervision and discipline of staff, and provision and supervision of measures to ensure the health, safety, and welfare of students. The principal assumed responsibilities of parent and guardian with respect to the welfare and discipline of students under his charge by delegation from the Crown. All staff members were responsible to the principal for performance of their duties. Discipline of staff was generally an internal affair at the institution except for gross misconduct which was to be reported to the department in the regular reports. [83] Unlike other Anglican schools, St. George's was not operated by the MSCC so that the principal did not come under control of the MSCC directorship. As such, the principal had greater independence than the principal of other Anglican schools. However, as a matter of practice, the principal participated in all MSCC programs for the school and operated the school according to MSCC guidelines. However, there were never any instructions or guidelines on the protection of children from abuse, or criteria for selection of child care workers. The principal did not, however, participate in training offered to principals of MSCC schools. The bishop of the diocese did not offer guidance or training either. [84] Also unlike other schools, practical management of St. George's was under the control of one man, the principal. He allocated funding received from the government and the NEC according to criteria set from time to time, hired all staff, and had complete control over the operations of the residence and school. It was apparent through advertisements and correspondence that staff were hired based first upon their church membership and spiritual values. The principal had complete control over the terms of employment of child care workers. Their responsibilities were set out by the principal. [85] The principal ensured that religious training and practice pervaded school and residential life at St. George's. Daily routine and special events centred around religious practice and conformity to religious doctrine. Children were endowed with the sacraments of the church without apparent specific parental approval. The fundamental teachings of the church approved for all denominational schools were disbursed at St. George's through the principal who was the leader in all religious activities. The principal reported regularly to the diocesan synod and communicated with the Bishop of Cariboo. [86] The principal also reported regularly to the Department of Indian Affairs on such matters as funding, class size and school enrollment, physical plant, and care and safety of students. [87] The principal acted as counsellor to the students under both roles as administrator and church leader. [88] The principal was paid from the total budget allocated to St. George's from the governmental per capita or, later, cost controlled funding. Until 1969, this came from the school bank account from which the principal drew salary cheques. The principal paid into the clergy pension plan of the Anglican Church. The department covered only a portion of this expense within operating expenses. The balance came from an apportionment from the diocese. [89] The accountability of the principal was dual; he reported to the church and to the government. The duties of the principal were dual; he was administrator and religious leader. These functions were intermeshed, inseparable, bilaterally symmetrical. The principal wore "two hats'. (e) The employment of Clarke [90] Derek Clarke had been employed as a child care worker at another Anglican institution for less than a year when he was asked to leave because he was unqualified. The job at St. George's was arranged for him by his supervisor who told him to go there. Upon arrival at St. George's, Clarke met briefly with the principal, Canon Wickenden. However, there was no interview, no solicitation of references nor any question whether he would start to work as a dormitory supervisor immediately. Clarke considered it "a done deal". There is no evidence of any inquiry made about Clarke's background except for referral from the other Anglican personnel. He had no training. Although it is true that he testified that he was not specifically asked his religious affiliation at this time, he was Anglican and the referral through Anglican connections was sufficient for an assumption to be made. He started in November 1965 under the direction of the principal. [91] Clarke was responsible for all aspects of the children's daily lives. He considered himself a role model, ensuring that the children attended religious service, praying and taking communion even though he was not religious. He knew that he was the closest thing to a parent that these children had while they resided in his dormitory. The routine never varied, with him engaged in the minutiae of taking the children for meals, putting them on the school bus, arranging bedtime, organizing chores, and sorting clothing amongst other things. Derek Clarke was responsible for every aspect of the children's daily care and well-being except for educational teaching. [92] He was paid by the principal by cheque from St. George's school. His salary was determined by the principal and allocated from St. George's budget. There was no governmental involvement in his original employment. He was employed by St. George's school through the principal. He followed directions from the principal who also established his duties. Rarely did the principal come into the dormitory although Harding came more than the others. Clarke attended child care workshops sponsored by the government in 1965, 1966, and 1967. 3. ST. GEORGE's INDIAN RESIDENTIAL SCHOOL: THE 1969 TRANSITION AND BEYOND (a) The change [93] Since 1966, the federal department of justice opined that staff at student residences operated by agreement with the Anglican Church, among other churches, were not church but Crown employees. The Canada Labour Relations Board concluded in 1966 that employees of a denominational residential facility were Crown employees. In 1968, the justice department gave an opinion that these employees were eligible for collective bargaining rights under federal legislation. The Department of Indian Affairs was instructed to bring all of the employees within the Public Service Employment Act, S.C. 1966-67, c.71 so that collective bargaining rights could apply to them. The 1969 change was made to effect collective bargaining rights without disrupting administration and management within the institutions. [94] Negotiations, described by a federal deputy minister as "extremely delicate", ensued between the churches and the government. As the churches came round to realization that the employees would become Crown employees, the federal government sought to preserve a "vestige" of the former arrangement by allowing administrators and child care workers to be nominated by the church. In fact, the alternative for action chosen by the federal government was purposefully designed to be the least disruptive with operational control remaining with the churches. This arrangement was chosen by the Indian Affairs branch in appreciation of church contribution over the years, for political reasons, and to maintain competent administration. Assumption of complete responsibility by the government would have meant the withdrawal of most experienced personnel, including administrators and child care workers, an option considered but rejected by government. [95] An agreement was reached for all employees to be brought under the Public Service Employment Act by April 1, 1969. This meant that contractual arrangements with church authorities were at an end and administrative responsibility for operation of the seventeen Anglican residences, including St. George's, formally went to the Department of Indian Affairs. The agreement included St. George's without distinction from MSCC residences within the Anglican organization even though St. George's had been without a written contract before. This indicates that both the government and the Anglican Church considered St. George's as if it were operated by agreement under s.113 of the Indian Act and not as a government-run institution. Clearly, the government did not consider St. George's to be one of two remaining departmentally run residences. This agreement marked a significant change in the government-church relationship. It did not, however, mark the end of the role of the church. [96] As part of the negotiated agreement, the change was to be gradual with a transition period during which time the role of the churches was to gradually disappear. The agreement called for the residences, including St. George's, to continue to be operated on a denominational basis. The Governor-in-Council exempted administrators and child care workers from the provisions of the Public Service Employment Act for a two year period, until April 1, 1971 so that the churches could continue to nominate administrators and child care workers who would then be appointed by the department. Nominations were to come from the Bishop of Cariboo to the regional superintendent, who would forward them to Ottawa. This order in council was subsequently extended until March 31, 1974. In 1973, the Public Service Commission ruled that employees exempted under these regulations were not employees under the Public Service Employment Act and so could not enter closed competitions for employment within the public service. [97] The Anglican Church of Canada entered into a service contract to recruit and nominate administrators and child care workers. The liaison service contract replaced the grant that had been given to the church since 1958 for overall administration of its residences. St. George's was included without distinction within the Anglican MSCC institutions for this purpose. This contract confirmed that the various religious denominations ceased to operate the student residences as at April 1, 1969. However, "continued involvement in the operation of these institutions' was recognized. The church work included: nomination of administrators and child care workers, action as an advisory council on policies affecting residences, coordination of chaplaincy services, assistance in interpretation of new departmental directives, and "to bring to the attention of the department those problem areas that may arise in the operation of residences across Canada". [98] When the service contracts for recruitment, consultation and liaison were implemented, the department director notified regional superintendents that this change meant that direct responsibility for student residence programs fell to the superintendent. Accordingly, the district superintendents were told to "be aware of their responsibility for child care standards and admission practices and in some regions may need to assume a more active role in the operation of these residences than they have previously". [99] On April 1, 1969, all staff at the schools and residences became employees of the federal government, subject to the exemptions described above. Day to day administration of the schools and residence was placed with the regional superintendent of Indian Affairs in each province. Principals of the schools were now called 'administrators'. Each residence became known as a "responsibility centre" within government circles. The government drafted a manual for the management and finance of all "government owned and operated student residences', including St. George's. Prior to this, the regulations from 1953 had applied. The administrator answered to the regional superintendent and continued to be responsible for the immediate operations at the residence. [100] The Anglican Diocese of Cariboo entered into contracts with the federal government for the provision of chaplaincy services to St. George's from 1971 to 1978. Payment for the service was made to the Bishop of Cariboo. These services were to be provided by the local Anglican minister in cooperation with and with approval of the administrator. The chaplaincy services included pastoral counselling to students, staff, and parents on matters pertaining to the moral and spiritual welfare of the students. It included: moral guidance to individual students; guidance on personal matters when requested; advice on moral values in the residence; and assistance to students on behavioral and adjustment problems. [101] The plan of the federal government was to gradually phase itself out of responsibility for all programs related to the education of Indian children and pass the responsibility to provincial governments. The Anglican Church also saw a declining role for itself as it moved from decisionmaking for native peoples to a cooperative, listening, communicating function. Both sought to involve Indian people in the management of the residences. (b) Preservation within change [102] Derek Clarke applied for employment with the federal public service on November 28, 1968 to comply with the change from school employment to the public service. The administrator of the residence, Canon Wickenden, recommended him as having fulfilled the criteria for qualification as a child care worker, level l, step 2. No review was undertaken of his application except to classify him within a salary level based upon experience. It was a pro forma process to effect the formal change to the public service. The department of Indian Affairs accepted the recommendation of the administrator without question. For practical purposes, there were no changes after 1969 related to his duties or responsibilities or to supervision by the principal/administrator. For the first time, he paid token board. He was classified as a level 1 child care worker at a salary of $5,363 per annum. He was credited with previous years worked in the residential school system for federal pension purposes. [103] When Clarke resigned in 1973, he was given a refund of pension credits. The department, informed only that he resigned, asked no questions about the resignation. [104] All employees of St. George's were classified as public servants notwithstanding the exemption and were paid directly by the Department of Indian and Northern Affairs. Each was credited with prior years worked within Anglican residences for purposes of the public service superannuation. The administrator continued to hire the child care workers through the church referral network. Because recruitment and nomination were within the power of the church, the department sought the co-operation of the church to include Indian people in management training. The churches were to develop a residential advisory group composed of native representatives to assist in the management of each residence. [105] The reporting structure to the federal government remained substantially the same except that reports now went to the regional offices rather than to Ottawa. Within the residence, the line of supervision between principal and child care worker remained the same. [106] Maintenance of an Anglican ethos at the school was a key objective of the church after 1969. The main components to achieve this goal were through nomination of the principal of the school, who still held immediate administrative control, and the chaplaincy contracts. [107] Canada, as before, accepted the nomination of principal as proposed by the Bishop through the NEC except for the appointment of Mr. Shepherd in 1970. Although Mr.Shepherd was an Anglican and was within the Anglican network of residential personnel, he was not the first choice of the Anglicans for the job. However, he was licenced as a lay reader at St. George's by the Bishop of Cariboo. He stayed only six months before being replaced in 1971 by the Anglican Church choice of Anthony Harding, the assistant administrator at the school. Harding was accepted as suitable without independent investigation by the department because of the nomination by the church. The Anglican Church maintained the right of nomination of the principal of the school until April 1,1974. The loss of this right was described in the report to synod of 1974 as follows: This will, in all probability, be the last official report made to the Synod of the Diocese of Cariboo on the state of St. George's Student Residence in Lytton, due to the fact that on April 1st 1974 the Anglican Church of Canada gave up the right to nominate the Administrator and he, in turn, to nominate the members of his own Child Care and Counselling staff. This really brings to an end 73 years of direct Church involvement in the actual operation of the institution and it is a sad day in some respects. . . . To provide for an orderly input of native Canadian thought and principles into the operation of the Residence and in the light of a motion of support passed at the last Synod that met in Prince George, an Advisory Committee was established under the Chairmanship of Chief Byron Spinks of Lytton together with representation from the Lytton Band, the Nicola Valley Tribal Administration and the K'san-Carrier Tribal Council. This committee is now in the process of obtaining a suitably qualified native to assume the position of Administrator-in-Training who, once he has received the required training and is acceptable to the Department of Indian and Northern Affairs, will assume the total administration of the Residence. This then will indeed be the culmination of the work of those of us who have had some hand in the past operation of the Residence and we receive this fact with joy and hope that something new and better will develop from this much closer involvement by and with the native people in the areas that we serve. [108] All principals received a pension from the Anglican Church when they retired from service as principal at St. George's. [109] The administrator of St. George's, Rev. Bramwell, reported to the synod in 1970 that the 1969 - ... change in our status has ... had little effect upon our students'. In fact, this was probably correct because administrative reality within the residence remained the same. Rev. John Shepherd, the administrator from 1970 - 1971, said that he administered St. George's just as he had administered other Anglican institutions within the MSCC. He was unaware of chaplaincy or service contracts related to St. George's and continued religious administration as before. Obviously, the Bishop of Cariboo did not think that the chaplaincy contracts made a significant difference to the operation of the school as, otherwise, he would have discussed changes with this administrator. Reports to synod from St. George's as a parish continued with requests for increased representation in 1974 due to an increase in the number of communicants. However, by 1975, the institution was considered "totally secular" because of the loss of control over the hiring of employees. Harding remained as principal until the school closed in 1979. [110] Following the 1969 change and the introduction of chaplaincy contracts, it was no longer the responsibility of the principal, now called the "administrator", to administer to the children's spiritual needs. This fell to the diocese and to the local parish according to the contract. However, the administrator at St. George's was unaware of any change and continued to also be the resident clergyman for the residence to the extent authorized by the bishop. The administrator continued to wear two hats. There was no real need to rely upon a local chaplaincy service separate from what had always been established between the local parish and St. George's. The diocese anticipated that this situation could change and that the bishop might have to provide separate chaplaincy services. However, Harding continued to provide chaplaincy services within the scope of authority given by the bishop, eventually becoming a priest, prior to the closure of St. George's. Nonetheless, the priest from the local parish was officially the chaplain of the school and attended regularly, as he had always done. [111] In 1973, the first meeting of the advisory committee to St. George's took place. The committee included five representatives of Indian bands, a representative of the department of Indian Affairs, the chaplain to the residence, and the administrator. The chaplain was a non-voting member. The role of the committee was to: liaise with parents, assist in decisionmaking with respect to applications to the school, interpret community needs, assist in selection of personnel particularly child care workers and assist in the provision of a cultural programme. [112] The process of integration of students into the mainstream education system initiated in 1952 continued. By 1970, St. George's had no classroom teaching except for religious training that was provided by the administrator. The residential focus was on the provision of social, moral and physical growth for the children. The number of students in residence declined. [113] The form for application to residential school changed in 1974 to reflect the disappearance of a "contract pupil residence". The admission forms now said: I hereby make application for the admission of the above child into this student residence shown, to remain therein under the guardianship of the administrator for such term as the Minister of Indian Affairs and Northern Development may deem proper and I hereby give the administrator express permission to authorize such medical and dental treatment as he in his discretion deems necessary. Floyd Mowatt's mother signed such a form for him in 1974. [114] As before, the principal for the school devised internal regulations in conformity with departmental directives to have policies on certain matters. Such internal directives were known to prohibit the presence of pupils in staff rooms in some schools. There is no evidence of such internal regulations at St. George's. [115] In 1970, the farm operations at the school ceased. Capital funds from the farm was transferred by the administrator to the diocese to be held in trust so long as the residence continued to be run as an Anglican institution. The trust was collapsed in 1976 and the fund applied to other Anglican work. [116] The residence ceased to operate as a residence in 1979. Harding became the administrator of the local Anglican hospital. The residence burnt to the ground in 1982. The chapel remains standing. (c) Apology [117] The Anglican Church of Canada acknowledged its role in abuse within its residential schools in an open apology to victims in 1993. High officials of the church and the Bishop of Cariboo apologized for the mental, physical, cultural and sexual abuse suffered by First Nations people at St. George's. III. POSITION OF THE ANGLICAN DEFENDANTS [118] It is important to know that neither the Anglican Church of Canada nor the Diocese of Cariboo nor their respective synods distinguished themselves from the other for purposes of this case. They were all represented by one counsel at trial. In other words, there was no issue taken with the identity of the religious defendants. Although there was separation made between the legal entity of the New England Company and both the Anglican Church and the Diocese of Cariboo, it was neither plead nor argued before me that if it was found that the Anglican Church generally was liable, that I should then go about dissecting the relationships between the various Anglican institutions to determine which, among them, was liable. Nor was it suggested that the appropriate party was not named as a defendant. [119] During the course of trial, it had been suggested to counsel for the religious defendants that there might be a conflict of interest between the various church bodies. But, this was rejected as inapplicable and the court was informed that the church did not take this position. The assessment of any liability of the church has proceeded on this basis. The religious defendants are referred to as the "Anglican church", "church" or "Anglican defendants'. [120] The third party notice of the Diocese of Cariboo claimed against the Anglican Church of Canada. The Anglican Church of Canada did not defend against this notice which was not pursued at trial. The Anglican Church of Canada made no claim against the Diocese of Cariboo. [121] The approach of the Anglican defendants was that they never had any responsibility for St. George's, that their role was pastoral only, and that St. George's was just another multi-denominational group within the geographical area of the Diocese of Cariboo. IV. POSITION OF CANADA [122] Canada admitted the sexual assaults upon the plaintiff but plead that it was not liable. Any damage to the plaintiff was caused solely by Clarke and the Anglican defendants. In argument, Canada did not say that it did not employ Clarke, but argued that vicarious liability, if found, should be joint with the Anglican defendants. Canada filed and proceeded with third party claims against the Anglican defendants for breach of contract, among other things. The Anglicans defended against the third party claim. V. VICARIOUS LIABILITY 1. Employers' Liability for the Acts of Clarke [123] There is no doubt that Derek Clarke is responsible for sexual assault of the plaintiff. He did not defend himself in these proceedings and the facts speak for themselves. The question is whether Clarke's employer should be vicariously liable for sexual assaults committed while Clarke was on duty at the school. If so, then who was Clarke's employer? [124] The Supreme Court of Canada considered an employer's vicarious liability for sexual abuse by employees in the recent cases of Bazley v. Curry, [1999] S.C.J. No. 35 and Jacobi v. Griffiths, [1999] S.C.J. No. 36. Madam Justice McLachlin, speaking for the court in Bazley v. Curry, supra at para. 15, said that judicial determination of whether an unauthorized act of an employee is so connected with authorized acts that they may be regarded as modes of doing an authorized act (the second branch of the Salmond test) is to be approached in two steps as follows: This review suggests that the second branch of the Salmond test may usefully be approached in two steps. First, a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability. This Court has an additional duty: to provide guidance for lower tribunals. Accordingly, I will try to proceed from these first two steps to articulate a rule consistent with both the existing cases and the policy reasons for vicarious liability. [125] Bazley v. Curry, supra and Jacobi v. Griffiths, supra are precedents, the combination of which unambiguously determines on which side of the line this case falls. These cases are most helpful and clearly suggest that the employer of Derek Clarke should be vicariously liable in the circumstances of this case. [126] The facts here are closely analogous to the facts in Bazley v. Curry, supra In the latter case, the defendant non- profit foundation operated a residential facility for the treatment of emotionally disturbed children. As substitute parent, the foundation practised "total intervention" in the lives of the children under its care. Employees of the foundation were authorized to act as parent figures for the children, looking after their physical, emotional, and mental care. The employees did everything that a parent would do, from general supervision to bathing and putting to bed. The foundation did not know that Curry was a paedophile when he was hired; but, his sexual exploitation of the vulnerable plaintiff over months became known. Curry was discharged. The foundation argued that it had committed no fault in hiring or supervising Curry and should not be legally responsible. [127] The Supreme Court of Canada linked an employee's misconduct to a risk that the employer's enterprise has placed in the community. McLachlin J. said at paras. 37 and 38: Underlying the cases holding employers vicariously liable for the unauthorized acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of the risk that the employer's enterprise creates or exacerbates. Similarly, the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence. Where the risk is closely associated with the wrong that occurred, it seems just that the entity that engages in the enterprise (and in many cases profits from it) should internalize the full cost of operation, including potential torts. ... On the other hand, when the wrongful act lacks meaningful connection to the enterprise, liability ceases to flow: [citation supplied]. [128] Generally, courts should be guided by the following principles: (1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of "scope of employment" and "mode of conduct". (2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer. (3) In determining the sufficiency of the connection between the employer's creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following: (a) the opportunity that the enterprise afforded the employee to abuse his or her power; (b) the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee); (c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise; (d) the extent of power conferred on the employee in relation to the victim; (e) the vulnerability of potential victims to wrongful exercise of the employee's power. (Bazley v. Curry, supra at para 41) [129] The connection between the wrongful act and what the employer asked of the employee must be strong. The opportunity given by the employer must be carefully evaluated to determine whether it materially increased the risk of harm. The nature of the relationship that the employment fosters may also enhance the risk of harm if intimacy, power, and authority create an ability to take advantage without effective complaint. Permitting of intimate touching creates obvious risk. [130] The test was summarized by McLachlin, J. at para. 46 as follows: In summary, the test for vicarious liability for an employee's sexual abuse of a client should focus on whether the employer's enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability -- fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee's specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because of the peculiar exercises of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing. [131] The court found that Curry, as a childcare counsellor, had opportunity for intimate private control and a parental relationship within his terms of employment that created the special environment that nurtured the sexual abuse. The employer's enterprise created and fostered the risk that led to harm. This was not an accident, but the product of a special relationship of intimacy and dependency of vulnerable children within the employment. McLachlin J. said that it was hard to imagine a job with a greater risk of child sexual abuse. [132] The majority in the Supreme Court of Canada did not find a strong connection between the enterprise risk and the sexual assault in Jacobi v. Griffiths, supra and denied vicarious lability for the employer of a program director of a boys' and girls' club who sexually assaulted the plaintiff at his home outside of working hours. Binnie, J. said that the strong connection test had to be applied with appropriate firmness. This meant that the employment must materially increase the risk of harm in the sense that the employment significantly contributed to the occurrence of harm. When the factors to assess whether an employer increased or created the risk of an employee committing an intentional tort were applied in that case, the misconduct was found too remote from the employer's enterprise to justify "no-fault" liability. Important to this conclusion were the facts that there had been no conferral of parental authority through employment and that the assaults were separated temporally and physically from any employment duties. [133] In these two recent decisions, the Supreme Court of Canada reviewed and considered numerous cases in which it was sought to make employers liable for intentional torts committed by employees. Many of the same case were cited to me by counsel. With the benefit of Bazley v. Curry and Jacobi v. Griffiths, my stage one analysis of previous cases is terrifically simplified. As stated by Binnie, J. in Jacobi v. Griffiths, supra at para. 63, it is more likely that employers will be held vicariously liable if they place the employee in a parental-type relationship. [134] The parent-like relationship that attracted liability in Bazley v. Curry, supra, was also found to attach liability in A.(C.) v. Critchley (1998), 166 D.L.R. (4th) 475 (B.C.C.A.), leave to appeal to the Supreme Court of Canada filed 5 January 1999, because the employer had conferred Critchley with 24 hour a day parental authority over residents of a wilderness group home and had encouraged a surrogate relationship between Critchley and the children. Similarly, in B.(K.L.) v. British Columbia (1998), 51 B.C.L.R. (3d) 1 (B.C.S.C.), appeal dismissed (1999) 172 D.L.R. (4th) 1 (B.C.C.A.), application for leave to appeal to the Supreme Court of Canada filed 27 May, 1999, the parental role entrusted to foster parents by the Superintendent of Child Welfare was key to a determination of vicarious liability to the provincial Crown. [135] An important analogous case is B. (W.R.) v. Plint (1998), 57 B.C.L.R. (3d) 18 (B.C.S.C.). Both the United Church of Canada and the federal government were found vicariously liable for sexual assaults committed by a dormitory supervisor at the Port Alberni Indian Residential School. As dormitory supervisor, Plint had the authority of a parent conferred upon him. His daily care of the children was not minor, but involved waking them and overseeing most aspects of their day until bedtime. Brenner, J. found that Plint ""in all respects functioned as [the children's] parent"" (para.24). [136] There is a strong connection between the type of risk created by the employment of Derek Clarke as a dormitory supervisor and the sexual assault of the plaintiff. Clarke was placed in a position where he assumed 24 hour care of the children. He awakened them in the morning, ensured that they said their prayers, saw them to school, supervised their meal hours, supervised their play, homework, and chores, oversaw their bathing, and put them to bed. He had access to the children in the dormitory at all hours. He could bestow favours and instill discipline. It was he who decided if a child was sick or needed special attention. He intimately inspected each boy for cleanliness at night before bedtime. [137] Clarke took advantage of all of this. He knew that the children were naturally shy and nervous away from home. They could not leave the residence as they were miles from home and knew that their parents would be penalized if they did not attend school. It is within this context that the employer's creation of risk is to be viewed. They were weak and vulnerable as few other children might be. And Clarke was the most immediate influential adult person over them. [138] The social architecture of the school, reinforced by the Anglican hierarchical ethos, ensured that Clarke would be viewed not just as a parent, but as the most powerful influence in the children's lives. Through the principal, the employer conferred upon the dormitory supervisor absolute power over a child's daily life. He was to be given the respect demanded within the religious, militaristic hierarchy that was St. George's School. The structure also made it unlikely that a child would complain. The nature of the intimacy ensured that the child would be too ashamed to tell anyone. It should also not be overlooked that Clarke was white as were all the staff, making the supervisor even more unassailable. [139] Clarke's own room was immediately adjacent to the dormitory and Clarke openly entertained and attracted the boys with his records. This was part of the set-up of the residence, thus greatly increasing the risk, especially when there was no evidence that boys were forbidden in Clarke's room. He had boys clean his room along with other chores that he assigned according to favourites, often using this as an excuse to entrap a boy. It appears that supervision of the supervisor was minimal, if at all. [140] The employer could not possibly have given an employee a greater opportunity to abuse children, except, perhaps, allowing the children to reside away from others in the supervisor's own home. This was, in fact, done from time to time as children left for the weekend with Clarke with permission from the principal. There is no doubt that Clarke's duties as dormitory supervisor created an obvious opportunity for abuse within a relationship of absolute dependency for the child and uncurtailed power for Clarke. The employer is vicariously liable for Clarke's sexual abuse of the plaintiff. 2. Who was Clarke's Employer? [141] The Anglican Church has denied that either it or the diocese employed Clarke during the period from 1970 to 1973 but said that Clarke was an employee of the federal government. The church's position was that it did not exercise control over Clarke so to be considered an employer and therefore responsible for his actions. Both the plaintiff and the federal Crown said that Clarke had two employers: the Crown and the Anglican Church. Both exercised control over Clarke so to be considered employers for the purposes of imposing vicarious liability. [142] Who was Derek Clarke's employer? Consideration of this issue necessarily begins with the decision of the Judicial Committee of the Privy Council in 1946, Montreal v. Montreal Locomotive Works Ltd., [1947] 1 D.L.R. 161. The complex of factors suggested in that case (at 169) continue to be applied in various forms in the determination of whether an employer- employee relationship exists. Those are: control, ownership of the tools, chance of profit, and risk of loss. Summed up, the crucial question in many cases is: whose business is it? The Lords had also spoken of the four indicia of a contract of service in Short v. J.W. Henderson, Ltd. (1946), 174 LT 417 at 421 (H.L.) as: power of selection, payment of wages, control over method of doing work, and the right of dismissal (see Marine Pipeline & Dredging Ltd. v. Canadian Fina Oil Limited (1964), 48 W.W.R. 462 at 469 (Alta. S.C.A.D.)). Esson, J. referred to the test as the power to select, control and dismiss in Robitaille v. Vancouver Hockey Club (1979), 19 B.C.L.R. 158 at 175 (S.C.), varied on other grounds (1981), 30 B.C.L.R. (286) (C.A.). [143] There is a need to look at the whole plan of the undertaking, at the particular facts of each case. As stated by Gregory, J. in Odin v. Columbia Cellulose Co. Ltd. (1967), 66 D.L.R. (2d) 278 at 281 (B.C.S.C.): Both cases suggest to me that there is no single test and that the whole of the circumstances must be considered to determine the relationship between the parties. [144] Certainly, not all of the factors need exist. They may also be present in an unusual form. The requirement is some reasonable measure of superintendence and control (Marine Pipeline & Dredging Ltd. v. Canadian Fina Oil Limited, supra at 469). The degree of control need not be absolute (Robitaille v. Vancouver Hockey Club, supra at 175). Some of these factors may be determined by union agreements or statutes. So, an employee's agreement to be bound by an association's principles and policies was found to be a measure of control within the Robitaille test (Hokanson v. Sheet Metal Workers International Association, Local 280 (1985), 12 C.C.E.L. 231 at 236-237 (B.C.S.C.)). The standard for application of the test may vary in the context of certain professions or skills. While a person may be left to work in his own way with minimal or no specific orders, the question is who is entitled to give orders as to how the work should be done (Marine Pipeline Dredging Ltd. v. Canadian Fina Oil Limited, supra at 472). [145] Specific agreements or terminology adopted by the parties may not be determinative. This is because statutes, employee forms, and the like are adapted to their own specific purpose such as tax and labour law which are unconnected to vicarious liability which has its own underlying policy (Hokanson v. S.M.W., Loc. 280, supra at 234; see also Bazley v. Curry, supra). [146] A person may be employed by more than one entity at the same time. In Sinclair v. Dover Engineering Services Ltd. (1988), 49 D.L.R. (4th) 297 at 299 (B.C.C.A.), Wallace, J.A. said: It must be kept in mind that one may be employed by a number of companies at different times for different purposes, or even at the same time. That is a matter of agreement reached between the employee and his respective employers and as long as they are aware of the employee's various activities or roles it is a matter with respect to which the parties can reach what they consider the most commercially convenient arrangement. And at 301: In my opinion, all of the circumstances of this case clearly support the inference that the plaintiff was employed under a contract of service with Cyril Management Ltd. and Dover Engineering Services Ltd., both of which exercised control over Mr. Sinclair and his affairs. This arrangement, with which the plaintiff, Mr. Sinclair, acquiesced, was devised because of the various beneficial aspects to the employer companies. They cannot, in my opinion, now deny its existence or the responsibility which it imposes upon them respecting their employee and the notice to which he is entitled upon dismissal. I would dismiss the appeal. [147] In B.(K.L.) v. Plint, supra, Brenner, J. decided that both the United Church and Canada were employers of a dormitory supervisor in a native residential school in Port Alberni, B.C. prior to 1969. Although the dormitory supervisor reported to the principal who created the rules, controlled day-to-day activities, and had the right to hire and fire, the principal could not be considered to be an "employer" because the residence did not separately exist as a legal entity. So, Brenner, J. looked beyond to ask (at para. 29): However in my view it is not accurate to characterize the principal as the "employer" of Plint. The principal was the chief executive officer of AIRS. If incorporated, AIRS would have been the employer of Plaint. However AIRS did not exist as a legal entity and hence it is necessary to look beyond AIRS to the Church and Canada to try to answer the real question. Which one of the Church or Canada can be properly characterized as the directing or controlling entity of AIRS and consequently responsible in law for the conduct of Plint who was controlled and directed on a day to day basis through the office of the principal? The resolution of this issue requires an analysis of the historical relationship between the Church and Canada with respect to AIRS and a consideration of the applicable legal principles of vicarious liability. [148] After a review of applicable statutes and agreements, along with historical development, he considered the vicarious liability of Canada and concluded (at paras. 121-125): However I do not think it accurate to characterize the principal as the representative of the Church alone. For the reasons earlier set out I consider that both the Church and Canada were directly involved with and exerted effective control over the principal's activities in the furtherance of their joint and several objectives. Canada says that it is appropriate to "look upwards" to define the employer and that when one does so, it is clear that the employer was the Church. Canada says that the essential question to be asked is "Which of the two entities controls the method in which the wrongdoer performs his work or duties?" Canada also emphasizes de jure rather than de facto control. However when one "looks up" in this case, one sees not only the terms of the 1962 Agreement defining the Church as the "Management" as stressed by Canada, but also the provisions of the Indian Act which casts a statutory duty on Canada for the education of Indian children. This is not a case where the Church was hired as an independent contractor and then left to manage the school subject only to periodic overview. The direct communications that passed between Canada and the principal are inconsistent with that type of relationship. In this case, Canada exercised the degree of control over the principal and over the activities of AIRS necessary to support a finding of vicarious liability in law. It was not simply a de facto control arising from the direct communications that passed between the Crown and the principal; nor was it the de jure control flowing from the provisions of the Indian Act. Rather, it was a combination of both. Canada's control over the manner in which Plint discharged his duties flowed from Canada's obligation under the Indian Act coupled with the purported exercise of that duty by issuing directives directly to the principal of AIRS in the form of correspondence, regulations, budget reviews etcetera. In my view this degree of control distinguishes this case from cases such as Mochinski v. Trendline (1997), 220 N.R. 148; and Lewis and Holt v. B.C. (1997), 220 N.R. 81 in which the Crown was relieved of vicarious (although not direct) liability because the Crown did not exercise the degree of control necessary to bring the independent contractor's employees into the ambit of service of the Crown. [149] With respect to the church, Brenner, J. said (at paras 137-140): I have earlier made the factual finding that both Church and Canada exercised control over AIRS through the principal. The chance of profit and risk of loss factors are of questionable application when considering institutions such as the Church or Canada. However when dealing with other than private sector organizations, these Montreal Locomotive tests can perhaps be restated as the chance of advancing or the risk of diminishing the interests of the institution. Canada had a statutory obligation to educate Indian children. Leaving aside the question as to whether that statutory duty was delegable, Canada nonetheless chose the Church as its instrument to fulfill at least part of its statutory obligations. This arrangement clearly advanced Canada's interests. The arrangement at AIRS also served to advance the interests of the Church. Beyond the rather obvious conclusion that the Church presumably would not have continued the arrangement with Canada for over 50 years unless it was beneficial to the Church's interests, the arrangement clearly allowed the Church to advance its ministry amongst the First Nations people. It allowed the Church to provide Christian education in parallel to the secular education being provided by the teaching staff in the direct employ of Canada. And so I conclude that their participation in AIRS advanced the interests of both Canada and the Church and hence the chance of profit/risk of loss tests set out in Montreal Locomotive are satisfied. To the extent that the Montreal Locomotive tests apply they support a conclusion that both the Church and Canada are vicariously responsible. [150] The same answer was rendered under the organization or "whose business is it" test. The "business' of the residential facility was both Canada's and the church's. Canada saw its duties under the Indian Act fulfilled; the United Church continued its work of ministering to First Nations children by providing a Christian education. Both Canada and the church exercised control over activities at the school through the office of the principal. The court found that the residence was a joint enterprise characterized by joint control and cooperative advancement of each party's interests. [151] B. v. Plint, supra is very instructive for this case. Brenner, J. applied the same principles of law as I have outlined above, although he did not have the benefit of the recent decisions in the Supreme Court of Canada. Although there was a written agreement governing the relationship between the United Church and Canada after 1962 in that case, closer examination of that agreement indicates that St. George's was run on substantially the same basis. The church selected the principal subject to approval of the Minister and was obliged to operate the school according to the same regulations, instructions, and directives issued from time to time by the Minister, as at St. George's. The United Church was responsible for employment of domestic staff while teachers were selected by the government subject to consultation with the church. The principal communicated regularly with both the church and Canada. Funding for the residence was the same as for St. George's. Historical development of the residence was very similar to St. George's as it related to the application of federal policies and practices. One question unanswered in B. v. Plint, supra, is what effect the changes in 1969 had upon the employer relationship of both the church and Canada. [152] As in B. v. Plint, supra, it cannot be said here, nor was it argued, that St. George's was a separate entity that employed Derek Clarke. In this case, the federal government did not argue that it was not an employer of Clarke (even though an order for dismissal of the case against Canada was sought). It acknowledged its responsibility but said that the Anglican Church was jointly liable as an employer. In view of B. v. Plint, supra, and the facts established in this case, this is a responsible, realistic attitude to express to this court. [153] The questions remain: was the Anglican Church and the Diocese of Cariboo simply a hiring agent for the Crown? was it solely a spiritual source for the children at the residence? I think not. The church historically supplied a comprehensive administrative structure and service to St. George's Residential School which remained substantially in place from 1969 to 1974 notwithstanding that many terms were dictated by the federal government and that the basis of church participation was formally enunciated in service and chaplaincy contracts. The church maintained control over the structure and direction of the school, including the duties of Derek Clarke, through the administrator who was directly responsible to the bishop either as lay reader or clergy, notwithstanding that the federal Crown exercised parallel authority. The Anglican Church remained a recognized institutional component at St. George's. It could have and did, remove Derek Clarke. While the 1969 changes marked the beginning of the formal decline of church influence at St. George's, they did not end the role of the church. [154] The 1969 change was prompted by a decision of the Canada Labour Relations Board in 1966 which denied certification to the Canadian Union of Public Employees for employees of the Fort Frances Residential School operated and managed by the Roman Catholic Oblate Fathers. The decision said that the Oblate Fathers operated and managed the school as agents for the Minister of Northern Affairs and that the employees were employees of the federal Crown under the Industrial Relations and Disputes Investigation Act, R.S.C. 1952 c. 152. The churches were known to oppose certification of employees of residential schools: but the federal government considered that these employees were entitled to collective bargaining rights. As a result of negotiations with the churches collectively, it was agreed that all employees would become federal employees as at April 1, 1969. There was a special exemption made for administrators (formerly "principals') and for child care workers so that the denominational churches could continue to control who became employed in those positions. The effect of the exemption was to exclude these employees from the Public Service Employment Act. They were federal employees in a hybrid sense during the transition period. [155] Derek Clarke would never have begun nor continued employment at St. George's if he had not come through the Anglican personnel network, and if he did not follow Anglican practices, teachings, and protocol as established by the administrator of St. George's and developed through the Anglican residential school network. The residence remained denominational after 1969. The principal and child care worker continued to be Anglican personnel. This meant that employees, particularly the administrator and child care workers, were obliged to follow the dictates of the diocese and church as interpreted by the administrator. Clarke was obliged, among other things, to attend Sunday church and oversee the religious practices of the children under his care. The Anglicans knew that control over the children through the person with the children the most, the child care worker, ensured their continuation in the Anglican faith. The Anglican defendants knew that the dormitory supervisors were in a parental role with the children. Both the principal and child care worker were actors strategically, contextually placed by the Anglican defendants to conduct themselves according to the structural properties established for all Anglican schools, including the principles of organization, the social system within the residence, and religious rules of behaviour. This assured the Anglican Church that their purpose to Anglicanize young native students would be achieved. [156] The Anglican tradition and ethos thus continued to be preserved at the residence through the administrator and the child care workers despite the 1969 change. As reported by the administrator to the diocesan synod, the change had little effect upon the students. It was looked upon by the Anglicans as a change in 'status' without substantive effect upon the operation of the school as an Anglican institution, for the time being. It remained, foremost, an Anglican institution and not a secular residence. There was no difference in the administration of St. George's during this time from other Anglican institutions according to Rev. John Shepherd who had been principal at another Anglican institution after the change before he came to St. George's. He said that the reporting and administrative structure of St. George's was essentially the same before and after April 1969. The Anglican structure and personnel were preserved where it affected the children the most. This ensured continuation of the missionary business of the church. St. George's remained the business of the Anglican Church as a whole as it continued to promote Anglican interests and objectives until at least 1974. [157] It is significant (but not determinative) that the government of Canada was not informed of the reason for Clarke's dismissal or, for that matter, that he was dismissed. His departure was characterized as a "resignation". The affair was cleansed. Nobody other than Anglican diocesan personnel were informed. The plaintiff was not given counselling or guidance. His parents were not informed. That this should come at a time when the federal government was closing other denominational residences may not be pure coincidence (Port Alberni was closed in 1974). There had already been problems of sexual misconduct at St. George's. Clearly, Harding (????) did not want an investigation by federal or other authorities. The dismissal of Clarke was handled solely by the Anglican Church, particularly the Diocese of Cariboo. [158] The business of St. George's was the business of the church. The church had at least a reasonable degree of control over the hiring and dismissal of Derek Clarke. The manner of Clarke's work at the residence was dictated, at least in part, by the Anglican model, the implementation of which was overseen by the administrator of the residence. Regardless of the changes in 1969, St. George's remained a joint venture with the church. [159] The Anglican Church is jointly vicariously liable with the federal Crown for the acts of Derek Clarke. [160] Based upon Sinclair v. Dover Engineering Services Ltd., supra, B. v. Plint, supra and the limited argument before me, I conclude that the federal Crown and the Anglican defendants are jointly and severally vicariously liable. I have not been asked to apportion vicarious liability under the Negligence Act, R.S.B.C. 1996 c. 333. I note, however, that Sinclair v. Dover Engineering Services Ltd. was a wrongful dismissal case. I also note that there is a line of authority in British Columbia that holds that a person vicariously liable is a person at fault for purposes of s. 1 and 4 of the Negligence Act (see Flamant v. Knelson (1971), 21 D.L.R. (3d) 357 (B.C.S.C.), Uhryn v. British Columbia Telephone Co., [1973] 5 W.W.R. 758 (B.C.S.C.), London Drugs Ltd. v. Kuehne & Nagel International Ltd. (1990), 45 B.C.L.R. (2d) 1 (B.C.C.A.), aff'd [1992] 3 S.C.R. 299). However, given the facts related to vicarious liability, I would be unable to divide liability meaningfully other than as I have already done. VI. NEGLIGENCE 1. The Duty of Care [161] Both the Anglican Defendants and the Crown pointed to the other as owing the plaintiff a duty of care. Both denied that they were in breach of any duty to the plaintiff. However, I agree with the plaintiff who argued that both the Crown and the Anglican Church owed a duty of care to the plaintiff and that both breached their duty. [162] The approved test to determine whether a duty of care is owed by a government agency was set out by Lord Wilberforce in Anns v. Merton London Borough Council, [1977] 2 W.L.R. 1024 (H.L.). In Just v. B.C., [1990] 1 W.W.R. 385 at 398 (S.C.C.), Mr. Justice Cory approved the two-step approach established by the learned law lord in these words: Through the trilogy of cases in this House - Donoghue v. Stevenson [1932] A.C. 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 and Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise: see Dorset Yacht case [1970] A.C. 1004, per Lord Reid at p. 1027, [emphasis added]. . . . It may be that the two-step approached as suggested by Lord Wilberforce should not always be slavishly followed: see Yuen Kun Yeu v. A.G. Hong Kong, [1988] A.C. 175 at 190, 191 and 194, [1987] 3 W.L.R. 776, [1987] 2 All E.R. 705 (P.C.). Nevertheless, it is a sound approach to first determine if there is a duty of care owed by a defendant to the plaintiff in any case where negligent misconduct has been alleged against a government agency. [163] The federal government was at all times the guardian of Floyd Mowatt while he attended St. George's. Canada exercised its power under the Indian Act to remove Mowatt from his home and place him at St. George's. This responsibility was discharged through delegation of the parental role to the principal of St. George's and then to the dormitory supervisors at the school. This role placed Canada in a relationship of proximity to Mowatt such that it was reasonably foreseeable that actions by Mowatt's guardian might likely cause damage to Mowatt. As found in K.L.B. v. British Columbia, supra, the institutional manner in which Canada chose to discharge this duty of care and the fact that care was undertaken for a large number of children does not negate that a relationship of sufficient proximity arose such as to create a duty of care. [164] In this circumstance, however, it is appropriate to consider the second step of the Anns test and ask whether there are any considerations which should reduce or limit the scope of duty assumed by the Crown. In C.A. v. Critchley, supra McEachern, C.J.B.C. alluded to these concerns in relation to fiduciary duties upon the Crown in a situation where the provincial Crown had placed unmanageable male youths in a wilderness group home. He said at para. 73: It was argued at trial that these provisions, and the common law, in effect placed the Ministry and all of its officials in the place of parents. This is undoubtedly so on a theoretical level because the former actually replaced the parents or guardians of the plaintiffs in their day-to-day care. This flows historically from the old principle of wardship long known to the law, but it hardly describes the relationship between a major agency of government and a child in its indirect care. These modern agencies must necessarily operate through officials, many of whom have no opportunity to participate in or even physically to oversee the care of every child committed to the care of the agency. Thus, it becomes important to consider whether, as a matter of law, the Crown is to be held liable for every misfortune that befalls a child in the legal care of the Ministry, or, if not, where the line is to be drawn. [165] He denied that the Crown owed a fiduciary duty in the absence of bad faith in this circumstance. However, he went on to consider negligence and did not question that a duty of care was owed except to note that the finding of the trial judge of foreseeability of harm to boys in care "would apply to every child in the legal care of the Crown". He denied liability in negligence because government officials did not have sufficient notice of facts or circumstances requiring their attention. [166] From a broad perspective, to say that a duty of care is not owed because an institution is too large and has assumed too many duties is not acceptable when harm has befallen children through no fault of their own. This is akin to saying that large institutions or corporations such as banks, hospitals, accounting firms, and the like should not be responsible because they place responsibility for individual clients with miscellaneous employees. It is reflective of the historically prevalent attitude in common law that attaches more interest, complexity, and responsibility to harm related to property than to the person. It also undermines the responsibility that governments assume when they take a child away from his parents. If government wanted to exempt themselves from responsibility under the common law, it had the legislative ability to do so. The placement of children in the care of the Crown is not just theoretical when children are removed from home, placed in institutions controlled by Crown personnel, and isolated from parental input and responsibility. Who is legally responsible for these children? Assumption of guardianship over Indian children by the Crown cannot be viewed as a hollow task devoid of responsibility when governmental objectives were being pursued through the policy of institutionalization of all Indian youth. [167] Discussion of whether there is a governmental duty of care should, in any event, be placed within the analytical framework of law enunciated by the Supreme Court of Canada in Lewis v. British Columbia, [1997] 3 S.C.R. 1145. There, Cory, J. said that as a general rule, traditional tort law duty of care applies to government agencies the same as it does to individuals unless there is a statutory exemption or the decision made by the government is in the nature of policy. It has not been seriously argued that the decision to place Mowatt in care was a policy decision. In this circumstance where the Indian Act has authorized the government to interfere in Mowatt's individual rights, an action will lie if the power was exercised negligently. The Crown cannot be distinguished from an individual as it relates to the finding of a duty of care in this circumstance. [168] Consideration of a duty of care should also have regard to the magnitude of the risk created by placing children in isolated areas, far from home, in the care of strangers. The effect of increased risk upon a duty of care was described in H.(M.) v. Bederman (1995), 27 C.C.L.T. (2d) 152 at 155 (Ont. G.D.) where a duty of supervision was found to exist to prevent assault in a medical clinic wherever "a risk of harm arises from the vulnerable state of the [party] in proximity to others who may act on their own intentions should opportunity arise". Eberhard, J. said at 154 that proper medical supervision in a cosmetic surgery cannot be equated with the necessary care to be given to vulnerable persons in an environment populated by persons brought into the environment by invitation of the defendant. He continued at 155: These suggestions of insensitivity or failure to self-protect and (sic) entirely irrelevant to my decision. I am not persuaded that anyone acted so as to encourage or facilitate the commission of a sexual assault. Rather, risk of harm arises from the vulnerable state of the patient in proximity to others who may act on their own intentions should opportunity arise. This possibility that others may act is not limited by gender or to sexual misconduct. It is not specific to bodybuilders with ponytails. It is a concern that arises where persons, unknown to each other and known only medically to the service provider are placed together in close physical proximity. There they may be at increased risk of unwanted conduct by the others present by reason of the service being provided or merely because they are in an environment void of usual protections. Such protections which are commonly relied on to deter misconduct include the likelihood of being observed afforded by public access, the presence, real or potential, of numbers of people, the freedom to come and go at will to self-protect, or conversely by personal control of one's own privacy. In an environment where strangers are brought together, these individuals may interact positively, negatively, tortiously or criminally. Depending on the degree to which the person who brought them together has, in doing so, created vulnerability or failed to adjust for the absence of usual societal protections, he has contributed to the increased risk that one may suffer wrongdoing at the hands of another. [169] The environment fostered by the Crown at St. George's, originally through Anglican auspices, was similar to that described by Eberhard J., devoid of usual protections and with increased risk. Canada owed a duty of care to Floyd Mowatt to take reasonable care that he was in a safe and healthy environment while resident at St. George's. [170] Different considerations arise with respect to the relationship between the Anglican defendants and Mowatt. The test is still the classic enunciation of the rule in Donaghue v. Stevenson, [1932] A.C. 532 at 580 (H.L.). [171] It cannot be said that the Anglicans were guardians of Floyd Mowatt, although they were certainly aware that their employees were placed in a position of parental responsibility towards a vulnerable child. The direct relationship assumed by the church towards Mowatt was as moral counsellor and protector. This role was assumed by knowingly immersing Mowatt in a pervasive, purposeful Anglican environment controlled by an Anglican administrator who was also a clergyman. Through the chaplaincy contracts, the Anglicans codified their role as pastoral counsellor which, in those days, was the alternative to psychological or psychiatric counselling. By placing the dormitory supervisor in close proximity to the children in a closed Anglican environment with the expectation that he would control the day-to-day moral and religious upbringing, the Anglicans assumed a duty of care to ensure that the children were given an upright moral environment in which to live. [172] This is not a situation of simple pastoral counselling as occurs within a parish. Floyd Mowatt was purposefully placed in an institutional Anglican environment without access to outside influence in order to further his religious education. There is not the distance here seen in regular contact between parishioner and clergyman where the parishioner returns to home and the influence of others. Here, the Anglicans undertook a role to influence Mowatt's life fundamentally, with the expectation of his blind obedience enforced by discipline. The Anglicans knew that an emotional dependence would arise in the children at the school through the intimacy and pervasiveness of the relationship that was fostered between the children and the adults directly responsible for their care. It was for this reason that control over who was administrator and who was child care worker were most important to the Anglican Church. The environment and practices created and followed by the dormitory supervisor were approved by the church through the administrator whose most basic duty was to ensure that the Anglican ethos was preserved at St. George's. [173] Within this context, the Anglican Church assumed a duty to act reasonably in the best interests of Floyd Mowatt to ensure a proper moral environment and to care for known moral harm that might befall him. While the potential breadth of this duty might be unreasonably overwhelming, this duty should be viewed solely within the facts of this case involving physical sexual abuse. 2. Breach of Standards of Care [174] The duties of care to provide a safe, healthy or moral environment for Floyd Mowatt included the responsibility for both the Crown and the Anglican Church to take reasonable steps to ascertain that the parental and pastoral power given to their joint employee was exercised properly. This necessarily required adequate and reasonable supervision. To place someone in the position of dormitory supervisor and then assume that he would fulfill the role reasonably is not enough. This is especially so when there were no established rules of conduct or regular supervision shown to have been followed here. To leave Clarke in his position without adequate supervision was to take a chance. [175] The standard of care to be exercised is consistent with that of a reasonably careful or prudent parent. In Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21 (S.C.C.), McIntyre, J. said that school authorities should exercise the standard of care in supervision and protection of students expected of a careful or prudent parent, qualified as necessary by the variety of activity engaged in. [176] Whether the Crown and the Anglican Church discharged their duty of supervision is an objective assessment based upon what the reasonable and prudent person would do ((M.(M.) v. F.(R.) (1997) 52 B.C.L.R. (3d) 127 (C.A.)). Within this assessment is consideration of the knowledge of each party and the ability of each to act. Esson, J.A. referred to the component of knowledge as essential to a finding of negligence when he quoted Professor Fleming on torts in M.(M.) v. F.(R.), supra at para. 110 as follows: Knowledge is fundamental to liability for negligence. The very concept of negligence presupposes that the actor either does foresee an unreasonable risk of injury, or could foresee it if he conducted himself as a reasonably prudent person. Foreseeability of harm, in turn, unless it is to depend on supernatural revelation, must depend on knowledge. Knowledge has been defined as the consciousness of the existence of a fact. [177] McEachern C.J.B.C. recognized the same principle in C.A. v. Critchley, supra at para.89, when he said that provincial government officials could not be found liable in the absence of notice of facts or circumstances requiring their attention. [178] However, there are situations when knowledge will be deemed because of an ancillary duty, proper performance of which would have disclosed the risk so that adequate measure could have been taken. Esson, J.A. described this by quoting at para 115 from Henry T. Terry, (1915) 29 Harv. L. Rev. 40 at p.48: The situation of the actor is subjective, not objective. It consists of such facts as are known to him. It would plainly be absurd and unjust to require a person to regulate his conduct with reference to facts of which he was ignorant. When, however, a person knows that he is ignorant of essential facts, it may be unreasonable for him to act at all. But in some circumstances a person may be charged with knowledge which in fact he has not, and be held to accountability as if he had it. When a person is under a duty to take precautions against a possible danger, there is usually an ancillary duty to use care to find out what precautions are needed; and for the purpose of the principal duty he is charged with all knowledge which he would have got by properly performing the ancillary duty. [179] In Lyth v. Dagg, (1989), 46 C.C.L.T. 25 (B.C.S.C.) there was insufficient proof that a school board knew or ought to have known that a teacher was making sexual overtures to students so to found a claim in negligence for failure to take preventative action. [180] If Harding did not become aware of Clarke's sexual misconduct, he ought to have. Knowledge of Clarke's sexual abuse would have been revealed through proper supervision of Derek Clarke, proper establishment and enforcement of rules disallowing students in staff quarters, and proper observation of general conduct of students at the residence by the administrator in the course of his regular duties. The administrator should have been aware of the behavior of children on the playground and childhood gossip which was apparent to a relatively novice teacher at the local school who acted swiftly to deal with the matter. If he was not, then he was willfully blinded by his own desires to avoid detection of lax moral conduct and sexually abusive behavior at St. George's. Other institutions had rules against children being in the rooms of dormitory supervisors which were enforced by the principal. It is hardly likely that Harding would establish or enforce rules against having children in the rooms of staff when he engaged in that very behavior. Clarke's sexual activity continued for eight years with such frequency that it is unreasonable to expect that it would have gone unnoticed with reasonable supervision of his activities in the dormitory. Harding certainly perceived the danger of sexual relations between students and staff at least two years prior to open disclosure of Clarke's behavior when Harding took the first steps in discipline of another child care worker for this very kind of conduct. If Harding did not know of Clarke's behavior, then he certainly ought to have known or he was wilfully blind to it. [181] Harding's knowledge attaches to his employers, the Crown and the Anglican Church. Both of them failed to take reasonable supervisory precautions against sexual abuse by dormitory supervisors, particularly Derek Clarke. Both were in a position to have acted to prevent the misbehavior. [182] The Anglican Church was in further breach of duty to the plaintiff in failing to investigate properly and report Clarke's sexual abuse after it became directly known to them and in failing to provide any counselling or care to Mowatt after the disclosure. No explanation was offered for this conduct except to argue that Harding was not acting for the Anglican Church and that the church did not know about the abuse. This has been rejected on the facts established before me. Rev. John Shepherd testified that he discussed with Harding the possibility of St. George's being closed as was happening with so many other institutions and said that Harding was "on the different end of the rainbow" on this issue. Why did Harding not report the abuse when he did so for a similar event only months before? The only reasons that appear from the evidence are concern that St. George's would be closed and a desire that Harding's own misbehavior not be disclosed. Failure to take proper care of the plaintiff in the circumstance of a horrible personal crisis is inexcusable and clearly a breach of the obligation upon the church to take moral care of Mowatt. This went beyond spiritual care in a doctrinal sense because the church assumed broader responsibility for the emotional upbringing of the plaintiff. [183] Both the Anglican Church and the Crown failed unreasonably to protect the plaintiff from harm. The failure to supervise Clarke adequately and to detect signs of sexual abuse when apparent to a reasonably prudent teacher or administrator materially contributed to the likelihood of harm befalling the plaintiff. When the Anglican Church did nothing after disclosure of the sex assaults, the Crown was deprived of an opportunity to contain the psychological injury and Mowatt was denied rehabilitative measures to deal with his trauma, shame and guilt. 3. Apportionment of Fault in Negligence [184] Because of the failure of the Anglican Church to disclose Clarke's abuse so that adequate investigation and care could follow, it bears greater fault. Because it was not established what actions the federal authority would likely have taken and because the timing and circumstances of eventual disclosure to the Crown are not clear, the greater fault attributed to the Anglican Church is sixty percent. VII FIDUCIARY DUTY [185] All defendants have been found liable in either assault, vicarious liability or negligence. Damages have been agreed and are not in issue before me. If breach of fiduciary duty is found in this case, damages might be assessed under a separate head in recognition of the power imbalance between the plaintiff and the Crown or the Anglican Church and of the separate nature of the harm done (McLachlin, J. in Norberg v. Wynrib, [1992] 2 S.C.R. 226 at 290-295). However, I am not called upon to assess damages as arise between the Crown and the Anglican Church. Tort has adequately dealt with the plaintiff's claim without undue distortion. No specific equitable relief has been sought. [186] The British Columbia Court of Appeal recently affirmed its view that breach of fiduciary duty carries with it the 'stench of dishonesty" attaching to personal wrongdoing beyond carelessness or negligence. In C.A. v. Critchley, supra all three judges agreed that the Crown as guardian of a child at a wilderness camp was not in breach of fiduciary duty when an employee of the camp sexually assaulted the plaintiff if Crown officers and employees acted honestly throughout. McEachern, C.J.B.C. criticized certain decisions of the Supreme Court of Canada as cumulatively failing to provide a comprehensive statement on the law in this area. He continued at para. 85: With this in mind, I note that in all the above cases except Guerin, the defendants personally failed to discharge a legal duty for their own benefit. In Lac the defendants betrayed their proposed partner; in Canson the lawyer failed to disclose the "flip" to his client; in Norberg the physician betrayed his patient; in M(K) v. M(H) a father violated his daughter; and in Hodgkinson, the advisor failed to disclose his personal interest. In each of these cases the defendant was guilty of something more than negligence or battery. Thus, only in Guerin was the defendant held to have breached a fiduciary duty without personal wrongdoing beyond possible carelessness or negligence. Guerin may be regarded as a case where a fiduciary disobeyed the instructions of the beneficiary, although even on that basis, there was no personal advantage accruing to the fiduciary. Guerin, however, was a special case where the aboriginal right in question was said to be unique. In that respect Guerin is obviously a case that should be confined to its particular facts and we should not be timid just because one case does not fit a useful pattern. Experience, rather than logic, governs the development of the law. Applying this approach, I conclude that it would be a principled approach to confine recovery based upon fiduciary duties to cases of the kind where, in addition to other usual requirements such as vulnerability and the exercise of a discretion, the defendant personally takes advantage of a relationship of trust or confidence for his or her direct or indirect personal advantage. This excludes from the reach of fiduciary duties many cases that can be resolved upon a tort or contract analysis, has the advantage of greater certainty, and also protects honest persons doing their best in difficult circumstances from the shame and stigma of disloyalty or dishonesty. In effect, this redirects fiduciary law back towards where it was before this experiment began but with much broader remedies, such as damages, when fiduciary duties are actually breached. [187] This is a reiteration of the view expressed by the learned Chief Justice in Norberg v. Wynrib (1990), 44 B.C.L.R. (2d) 47 (B.C.C.A.) that was approved by Sopinka, J. in the Supreme Court of Canada decision in Norberg v. Wynrib, supra at 312-313. Sopinka, J. said at 312: This Court examined the principles of fiduciary duty in Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574. In that case, I concluded for the majority on this point at p. 596, that fiduciary obligation "must be reserved for situations that are truly in need of the special protection that equity affords". It was acknowledged, at p. 597, that "[t]he nature of the relationship may be such that, notwithstanding that it is usually a fiduciary relationship, in exceptional circumstances it is not", and further, that "not all obligations existing between the parties to a well-recognized fiduciary relationship will be fiduciary in nature". The relationship between a doctor and his or her patient is precisely of this hybrid genre. In Lac Minerals Ltd., supra, I also referred to the judgment of Southin J.A. in Girardet v. Crease & Co. (1987), 11 B.C.L.R. (2d) 361 (S.C.), which held that a solicitor's failure to use care and skill did not essentially become a breach of fiduciary duty, but rather, the breach could be founded in contract or negligence. Likewise, certain obligations that arise from a doctor and patient relationship are fiduciary in nature; however, other obligations are contractual or based on the neighbourhood principle which is the foundation of the law of negligence. Fiduciary duties should not be superimposed on these common law duties simply to improve the nature or extent of the remedy. [188] However, in M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 at 61, a case involving a father's sexual assault of a daughter, Sopinka, J. agreed with La Forest, J. when he said: In Norberg, McLachlin J. and I differed on the path to be followed in upholding recovery. She chose the route of the fiduciary claim whereas I preferred the route afforded by common law tort of battery because in the circumstances of that case there might be difficulties concerning the applicability of fiduciary obligations, an issue I did not find it necessary to decide. I could do this because I did not consider the common law molds to be ill-fitting in that case. Nor, as I will attempt to demonstrate, do I think they are ill-fitting in the present circumstances. Nonetheless, I agree with my colleague that a breach of fiduciary duty cannot be automatically overlooked in favour of concurrent common law claims. The point is simply stated by Cooke P. of the New Zealand Court of Appeal in Mouat v. Boyce, unreported March 11, 1992, at p. 11: "For breach of these duties, now that common law and equity are mingled the Court has available the full range of remedies, including damages or compensation and restitutionary remedies such as an account of profits. What is appropriate to the particular facts may be granted." [189] While LaForest, J. found a breach of fiduciary duty in that case, he did not award different or greater damages. [190] In K.L.B. v. British Columbia, supra, the provincial Crown as guardian of the plaintiff was found in breach of fiduciary duty for abuses that occurred in a foster home. There was no specific finding of dishonesty made. The determination that a fiduciary relationship existed upon the Crown as guardian remains unaffected by C.A. v. Critchley, supra, because McEachern, C.J.B.C. found that "everyone charged with responsibility for the care of children is under a fiduciary duty towards such children" (at para. 18). The real question there and here is whether there had been a breach of that duty. [191] In this case, the failure to supervise does not constitute a breach of fiduciary duty, although it is negligence. The breach of fiduciary duty is the failure to report properly and investigate the sexual abuse of Floyd Mowatt and to care for Mowatt afterwards for reasons related to protection of the interests of the Anglican Church and Harding. In the circumstances established here, I do not attribute these failures to the federal Crown who were purposefully kept ignorant of Clarke's conduct by Harding in consultation with the Anglicans. The breach of fiduciary duty can be attributed to the Anglican defendants, but only if they are also in a fiduciary relationship. [192] This is a backward way of coming to the question: were the Anglican defendants in a fiduciary relationship with the plaintiff? This is not a clear situation as in the case of the Crown where guardianship obligations clearly raise a fiduciary relationship. The Anglican defendants knew that their employees were in loco parentis to children at the residence; but, this does not presumptively establish a fiduciary relationship. The answer to the question must be determined by the fiduciary analysis established by Wilson, J. in Frame v. Smith, [1987] 2 S.C.R. 99 (as noted by McLachlin, J. in Norberg v. Wynrib, supra at 274 to have been approved in Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574 and Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534). Three general characteristics are required: the fiduciary must have scope for the exercise of some discretion or power, the fiduciary can unilaterally exercise that power or discretion so to affect the beneficiary's legal or practical interests, and the beneficiary must be particularly vulnerable. [193] Certainly, the plaintiff was vulnerable as a child isolated in an Anglican institution under the control of an Anglican dormitory supervisor and principal. This control was almost absolute on a daily basis as every aspect of the plaintiff's life was subject to the determination of these residential officials. The test from Frame v. Smith is readily met on this analysis which is essentially the same as the guardianship question. But, this is not enough when it comes to consideration of the Anglican Church. The real question is whether there was something about the Anglican nature or involvement in it that raises a fiduciary relationship. [194] In Moses v. Diocese of Colorado, (1993), 863 P. 2d 310 (Colo.S.C.), the assistant priest of a parish engaged in sexual relations with the mentally unstable plaintiff while counselling and advising her on personal matters. When his conduct became known to other priests, he was warned to be more careful and the diocese became involved in the matter. The bishop undertook personally to look after the plaintiff whilst promoting the assistant priest after a warning and assurance that his new parish would not be told. The bishop told the plaintiff not to tell anyone except her husband and took no further action to assist her. While the Colorado appeals court recognized that a clergy-parishioner relationship is not necessarily fiduciary in nature, it does create an interaction that involves trust and reliance. The diocese assumed a duty to act in the plaintiff's best interests when they acted to resolve the problems that were the result of the relationship between the plaintiff and the priest. The court found that there was no error in the conclusion that the diocese was in breach of fiduciary duty in these circumstances. [195] Moses v. Diocese of Colorado, supra provides an interesting comparative case on the facts. It was the failure of the bishop to act after the disclosure and undertaking to do so that led to a breach of fiduciary duty. This was done to promote secrecy about the issue within the church. While the actions of the bishop were more detailed and direct that here, the case is helpful to an appreciation that the conduct of religious personnel is not only about pure spirituality as was suggested before me. Further, it shows that undertakings made within the religious realm can have implications within fiduciary relations. [196] The Anglican Church through the principal of the residence was in a position to exercise power over the plaintiff as it pertained to his moral and emotional well-being and dignity. It did so daily by imposing religious practices and influence which involved an interaction that created trust and reliance. The plaintiff absolutely trusted that he would be properly cared for, especially because this was an Anglican institution. The fact of Anglicanism lent a superior moral tone to the residence that created an additional level of assurance. The Bishop of the Diocese knew that dormitory supervisors were in a position to affect the plaintiff's intimate personal and physical interests and encouraged this position of trust through insistence that child care workers be Anglican and follow Anglican practice. When Clarke breached this trust, Harding told the plaintiff that he would bring the matter to the appropriate authorities. The Anglicans took control of the matter and took no action. The Anglicans assumed a duty to act on behalf of the plaintiff in this circumstance and did nothing. Although the behavior of diocesan personnel lacks detailed particularity in this case, the substance of the decisions and who made them are apparent. The Anglican Church was in a fiduciary relationship with the plaintiff when it undertook to look after his interests to the exclusion of the federal Crown following the disclosure of Clarke's abuse. [197] The Anglican defendants are responsible to the plaintiff for breach of fiduciary duty. VIII. THIRD PARTY PROCEEDINGS [198] The federal Crown has claimed against Clarke and the Anglican defendants as having caused or contributed to any loss or damage to the plaintiff attributable to the Crown. Clarke did not defend against this claim. The Crown is entitled to judgment against him for contribution for any amount that the Crown is found liable to the plaintiff, including interest and costs. [199] The claim against the Anglican defendants is for breach of the advisory service and chaplaincy contracts that were entered into in 1969 and subsequently and for contribution for negligence and breach of fiduciary duty. The basis of the breach of contracts argument is twofold: first, the Anglican Church of Canada undertook, in the advisory services contract, to advise the Department of Indian Affairs of problems within the residences and failed to do so with respect to Derek Clark; and, second, the Diocese of Cariboo failed to provide counselling services under the chaplaincy contracts to Mowatt after the disclosure. [200] The first alleged breach arises because of the advisory services contract of April 1973 to March 1974 which provided that the Anglican Church of Canada would - ... bring to the attention of the department, those problem areas that may arise in the operation of residences across Canada". St. George's was included in this undertaking. The Crown has not established that information about Derek Clarke's sexual assaults was ever given to anyone directly involved with the Anglican Church of Canada. Neither was it presented that this knowledge should be imputed to the national church body in contract. This claim is dismissed. [201] The Diocese of Cariboo agreed in the chaplaincy contract for St. George's to provide pastoral counselling, moral guidance and personal assistance to the students. This was not provided to Floyd Mowatt after the disclosure. The contracts also contained an indemnity agreement whereby the diocese agreed to "indemnify and save harmless Her Majesty from and against all claims ... damages, actions, suits ... in any manner based upon, occasioned by, or attributable to the activities of [the diocese]". The Crown is entitled to damages for breach of this agreement. [202] The measure of damages is the amount that would be payable as damages to Mowatt for exacerbation of the effects of the sexual assaults by the failure to obtain proper rehabilitative care immediately after the disclosure, up to the time that the Crown was informed of the reasons for Clarke's departure and in a position to take action itself. This does not relieve the Crown of responsibility for the sexual assault itself which the Crown could have prevented independent of the Anglican defendants. Because damages have been agreed, it is impossible for me to assess this amount properly. If the defendants are unable to agree on the amount, the matter may be referred back to me for determination. [203] The third party action by the Anglican Church of Canada and the Diocese of Cariboo against the federal Crown is dismissed because I have already apportioned liability above. The same can be said for the Crown's third party claims sounding as contribution for negligence and breach of fiduciary duty. IX. CONCLUSION [204] The plaintiff is entitled to damages against all defendants. The federal Crown is entitled to third party relief against the Diocese of Cariboo. The parties are at liberty to speak to the matter of costs. "J.R. Dillon J."