I. The Claim ...........................................                1

II. The Parties ...........................................              6

III. The Issues ............................................             .9

IV. Decision on Liability .................................            10

Issue 1 Has the plaintiff met the required
standard to prove that he was sexually
assaulted by Saxey? ......................... .                        10

Issue 2(i) Are the Oblates vicariously liable?  .                      58

Issue 2(ii) Are the Oblates liable in negligence?                     132

Issue 2(iii) What specific injuries has the
plaintiff suffered as a result of the sexual
assaults? ...................................                         133

The Parties' Positions ................................... .               133

The Plaintiff's Evidence ............................... ...              135

The Experts' Evidence .................................. .. .              196

Bedwetting ............................................. .. .              227

Interpersonal Difficulties .............................. . .              231

Symptoms of PTSD ........................................ ..              240

Depression .............................................. . .              247

Alcohol Abuse ........................................... . .              251

Issue 2(iv) What compensation is the
plaintiff entitled to? .....................                .          256

The Parties' Positions .................................. . .              257

Decision ............................................... .. .              259

General Damages ........................................ ...               263

Loss of Past Earning Capacity .......................... ..               300

Loss of Future Earning Capacity .......................... .              329

Future Care Costs ....................................... . .              330

Conclusion ............................................. .. .              335

[1] The plaintiff claims that between 1957 and 1962, while he was a resident student at the Christie Indian Residential School ("Christie"), located on Meares Island, near Tofino, British Columbia, and operated by the defendant Order of the Oblates of Mary Immaculate in the Province of British Columbia ("Oblates"), he was repeatedly sexually assaulted by one Martin Saxey ("Saxey"), a man who was employed by the Oblates to work at Christie, primarily as a baker.

[2] The plaintiff, now aged 51, alleges that Saxey, who died in 1986, commenced sexually assaulting him when he was seven years old, and that the assaults continued on a regular and frequent basis until he was 11 or 12 years old. He also alleges that all of the assaults took place in Saxey's living quarters which were situated in a building on the grounds at Christie.

[3] Plaintiff's counsel submitted two theories of liability: first, the vicarious liability of the Oblates based upon the contention that the unique circumstances and environment of Christie created and materially enhanced the risk of sexual assaults on the plaintiff by Saxey; second, the direct liability of the Oblates arising out of the negligence of Christie's principal for hiring Saxey, a person known to him to have a history of violent homicide. Plaintiff's counsel submitted that to hire a person with Saxey's background to work at Christie constituted an immediate and continuing breach of duty to all of the children attending Christie, including the plaintiff.

[4] Counsel for the Oblates submitted that the constant supervision of the children, coupled with their daily schedules, left no opportunity for Saxey to have sexually assaulted the plaintiff. Furthermore, counsel submitted that even if the plaintiff could prove on the requisite standard that he was sexually assaulted by Saxey, the current law surrounding the issue of vicarious liability can have no application to the case at bar because Saxey was an employee who had no authority over, or responsibility for the children at Christie.

[5] On the issue of direct liability, counsel submitted that the court must decide this issue based upon the standard of care expected of the Oblates in the context of operating a residential school in the 1950s and 1960s, and not based upon the current standard of what is known about the nature, degree or extent of sexual assaults upon children. Counsel submitted that the Oblates met this standard of care, and that any damages suffered by the plaintiff as a result of the alleged sexual assaults were not foreseeable.

[6] Prior to attending Christie, the plaintiff lived with his parents and siblings in Queens Cove, a village on the West Coast of British Columbia, then consisting of about eight families. The plaintiff, then six years old, and an older brother, L.B., arrived at Christie on September 18, 1956. He left Christie in June 1965.

[7] The Oblates, incorporated by a special Act of the British Columbia Legislature, is the corporate vehicle through which the Oblates of St. Paul's Province own property and transact business. From 1900 to 1938, Christie was owned and operated as an Indian residential school by the Benedictine Order. In 1938, the Oblates purchased the land and buildings comprising Christie and from that time forward, Christie has been owned, operated and staffed by the Oblates.

[8] With respect to Saxey's background, on May 2, 1951 he was sentenced to death after being convicted by a jury for murdering a man in February 1951 during an argument over a driftwood log. On September 13, 1951 the Court of Appeal reversed his conviction and ordered a new trial. On October 17, 1951 a second jury found him guilty of manslaughter. He was sentenced to six years in jail. Following his release, he became employed by the Oblates, commencing his employment at Christie on September 14, 1955.

[9] The issues in this trial are those raised between the plaintiff and the Oblates. The Third and Fourth party issues have been severed and adjourned generally, as have the issues between the plaintiff and the defendant Matthew Williams. The issues then are, as follows:

1. Has the plaintiff met the required standard to prove that he was sexually assaulted by Saxey?

2. If the answer to 1 above is yes:

(i) are the Oblates vicariously liable?;

(ii) if not, are the Oblates liable in negligence?;

(iii) if the Oblates are vicariously liable, or negligent, what specific injuries has the plaintiff suffered as a result of the sexual assaults?;

(iv) if the plaintiff has proven that he suffers from specific injuries caused by the sexual assaults, what compensation is the plaintiff entitled to?

Has the plaintiff met the required standard to prove that he was sexually assaulted by Saxey?

Answer: Yes.

[10] In this case, as in most cases of alleged sexual assault, there are no eye witnesses to the central events. The court's assessment of the reliability of the plaintiff's allegations in the instant case is made even more difficult and complicated not only by the fact that the plaintiff is recalling events that took place more than 40 years ago, but also by the fact that Saxey is now deceased.

[11] The applicable law on this issue is that stated succinctly by Brenner C.J. in Blackwater v. Plint, 2001 BCSC 997, where at para. 17 the Chief Justice said, as follows:

[12] As for the appropriate standard to be applied, the Chief Justice said, at paras. 10-12 of the decision, as follows:

I do not regard such an approach as a departure from a standard of proof based on a balance of probabilities nor as supporting a shifting standard. The question in all civil cases is what evidence with what weight that is accorded to it will move the Court to conclude that a proof on a balance of probabilities has been established.

[13] In B.(M.) v. British Columbia (2001), 87 B.C.L.R. (3d) 12 at para. 25 Prowse J.A. said, as follows:

In my view, this statement is consistent with the general proposition that, while there are only two standards of proof known to our law: the civil standard of proof on a balance of probabilities, and the criminal standard of proof beyond a reasonable doubt, there are degrees of probability within the civil standard to take cognizance of the seriousness of the allegations at stake.

[14] Recognizing then that where a civil claim alleges sexual abuse, a higher degree of probability within the civil standard is appropriate, and that in the instant case the matter turns largely, if not almost entirely on the plaintiff's credibility, I wish to start my reasons by stating that I found the plaintiff's testimony on this issue to be very compelling. I hold a strong impression that he was telling the truth when he testified about Saxey's sexual assaults upon him. I am also convinced that his anxiety on the witness stand when recalling the events was most genuine, and that he was very sincere when he said, in cross-examination, that he could still smell the room where the assaults took place, even as he sat in the witness box, and that while he could not describe the smell, he did not like it. When describing Saxey's living quarters, he said, "it's very disturbing and it's such a horrifying thought to have to try to think about that place".

[15] Turning then to the plaintiff's account of the sexual assaults, he said that Saxey repeatedly sexually assaulted him beginning early in the fall of 1957, when he was seven years old, and that all of the assaults took place in Saxey's living quarters. The plaintiff recalled that Saxey assaulted him about twice a week until he was 11 or 12 years old.

[16] When asked how he felt emotionally when Saxey approached him, the plaintiff said that he was upset and scared and wanted to get away and go play somewhere else but that Saxey kept on telling him that he had candy up in his room and that he would give him lots. The plaintiff said he ultimately went with Saxey because of the candy, and that in doing so he was scared.

[17] The plaintiff, who testified that Saxey's living quarters was one bedroom and a living room area, and that Saxey lived by himself, described the first incident of sexual assault by Saxey, as follows:

Q Can you describe what happened?

A He lured me into his place, he had a place in a two storey building and he was upstairs. And he lured me up there. And when he got me up into his room he said that he had some candy and I was going to grab that candy and go and he caught me and he brought me to his bedroom and he threw me on his bed. He got me on the bed he took my clothes off, my pants, my shorts, and I was scared, I didn't know what to do, didn't know what to say, I wanted to get out. But he held me down and he started having sex with me.

[18] When asked by his counsel to describe what happened after Saxey threw him on the bed, the plaintiff testified, as follows:

Q Now, after Martin Saxey threw you on the bed as you've testified, exactly what happened next?

A He got my pants and shorts off and he started playing with my penis and then he spit between my legs and he put saliva between my legs and he closed my legs together, I thought he was going to tie me up when he did that. And then he continued, he pulled off his pants, and he put his penis between my legs and he partially penetrated my anus.

Q Were you lying down?

A I was on my back, yes.

Q What happened next?

A He continued having sex with me until he ejaculated.

Q And did you try to get away at any time during this episode?

A I was so scared I didn't know what to do.

Q Did you say anything to him?

A I couldn't say anything, I was too scared.

Q Was Martin Saxey violent with you during this episode?

A I would say, yeah, he was, yeah.

Q In what sense?

A Well, he got me on his bed he was practically ripping my pants off, you know, I mean, he wasn't gentle about nothing, you know.

Q [E.B.], what else do you remember about this episode of abuse?

A After he finished, after he ejaculated, he got up, left, went into the living room area and I was left there and he threw me a towel. And I was left there to clean myself up.

Q Did you stay in the room afterward?

A I wanted to run out.

Q Did you?

A No. He was guarding the door. When I got into the living room he was sitting right by the door. He had some candy in his hand, it wasn't a lot of candy, but, you know, there was some, and he gave it to me and he said, "You be quiet, you don't tell nobody". And I left. I wanted to hide. I didn't know what to do. I know I stayed away from other boys because I felt a lot of shame. I was so violated.

[19] The plaintiff testified that the sexual assaults by Saxey upon him varied from time to time, stating as follows:

Q Can you elaborate on how they varied?

A Like I told you about the first time it was done that way, and the other times he would have me masturbating him and I would have to be facing right to him on my knees. And like he was sitting on the bed, you know, I would be kneeling in front of him.

Q Were there any other variations?

A No, no.

[20] The plaintiff testified that he did not tell anyone about the assaults up to the time that he left Christie, and that he did not know of any other children being sexually abused while he was there. He said that he used to think he was the only one who was sexually assaulted at Christie. The plaintiff said the first time that he ever told another person about the sexual assaults was in 1978, and that person was his lawyer. When asked why he did not tell anyone about the sexual assaults while he was at Christie, he said it was because he was, "too scared and ashamed".

[21] The main basis of the defence attack on the plaintiff's credibility is the assertion that the plaintiff gave different descriptions of the alleged sexual assaults to the experts, the police and at trial.

[22] On cross-examination, counsel for the Oblates put to the plaintiff the clinical records of Ms. Eroca Shaler, a psychologist consulted by the plaintiff in 1995. She recorded in her clinical records that the plaintiff told her that in his first experience with Saxey, Saxey tried to bribe him into his place and that, "he did oral stuff as well as fondling, masturbation, frottage - several times", and that it made him angry just to have to think about it. The plaintiff confirmed that Ms. Shaler's clinical records, although not exactly in the words he used to her, correctly set out what he had told her.

[23] The plaintiff also confirmed as being correct a written record made by the R.C.M.P. of what the plaintiff told the interviewing constable on October 27, 1995. The plaintiff described the sexual assaults to the police, as follows:

A And I didn't know about this that uh, that this man had uh, committed this felony, till later on. Over the years I had, I had heard through grapevine that he had uh, committed this, felony. And uh when I heard that uh, I was really I got really scared. Really anxious. Because uh, what he did to me in his house and at that residential school. Like he forced me into his bedroom. He, you know, almost like, uh, you know rippen' my pants off. And I was really scared and, didn't know what was happening what was going on. And why he was doing that, to me. And then uh, and he had my pants off and my shorts off and, he uh, he tried grabbed hold of my genitals like he knew what he was gonna do with me. And I started to cry. He got kind of um, angry. He was telling me to, to stop. Stop crying and to be quiet. I couldn't stop crying. I just continued crying. And uh, he grabbed my genitals and he started uh, masturbating me. He continued doing that. And uh, as soon as it was over he pushed me out of his door. He told me not to say anything to anybody. Told me to keep quiet about what happened. And I felt so ashamed. I didn't know what to do. I didn't know who to, who to turn to or who to talk to. And I went uh, like there was a basement, in the building I went down there. I went in the corner, and just started crying. And everybody else was all the boys were playing outside. Playing down on the beach. And I was alone. And I just cried cried...

A ...And this carried on and he continued to punish me and he'd always do, do the same thing. Take my pants off and he'd masturbate me all the time. This uh, went on till, right up to twelve years old...

[24] In his report dated November 4, 1996, Dr. P. Janke, the defence psychiatrist, set out what the plaintiff told him about the alleged sexual assaults, as follows:

[25] When the plaintiff's history as recorded by Dr. Janke was put to the plaintiff on his cross-examination, he confirmed it as being correct.

[26] With respect to the plaintiff's direct testimony that the sexual assaults included partial anal penetration, defence counsel referred to the report and testimony of the plaintiff's psychiatrist, Dr. K. Riar on this point. In his report dated July 13, 2000 Dr. Riar described what the plaintiff told him about the alleged sexual assaults, as follows:

[27] When Dr. Riar learned that the plaintiff had given different descriptions of the alleged sexual assaults, he telephoned the plaintiff to check his understanding that the assaults included anal penetration. In cross-examination, Dr. Riar testified, as follows:

[28] Dr. Riar also testified, on cross-examination, as follows:

Q And then he tells you about Saxey, if I may please ask you to look at paragraph 2?

A Yeah. 2 or 3?

Q Paragraph 2 of page 3.

A Okay.

Q He says "While talking about abuse he indicated the sexual mistreatment by an employee"?

A That's right.

Q And then he goes on, I'm skipping, that the downstairs was occupied by his grandparents?

A That's right.

Q And then [E.B.] indicated that the perpetrator lured him into his place by saying that he had some candy there, and he took him upstairs?

A That's right.

Q It was daytime. Once in the perpetrator's residence, [E.B.] said, "he had me by my arm and dragged me into his bedroom." Once there [E.B.] was put on the bed and the perpetrator took off his clothes. The whole experience was very frightening for [E.B.] and he did not know what to do. The perpetrator put [E.B.] on the bed and started having anal sex with him, he recalled that it was very painful and he was crying. Once the perpetrator finished he left him on the bed to clean himself. This is what he told you; is that correct?

A That's right.

A That's right.

Q And you also have seen what he told Dr. Shaler, which was different than what he told you?

A Yes.

Q And you also have commented that he told Dr. Janke a different version; isn't that correct?

A That's right.

Q And when my friend was asking you questions, you said that you and Dr. Janke had consulted about this, and he had told different versions to him and to you; is that correct?

A That's my understanding, yeah.

Q Doctor, out of absolute fairness to [E.B.], I had asked him about this, about him having -- sorry, about him having told you about anal sex, and I would like to read what he said to you -- said to me -- or to his lordship. I will just be one second. I'm sorry, your lordship. ..

Q Your lordship, it was page 109, sorry. It's question 743, your lordship. It's -- it's your report that I'm reading to him, doctor, and I say "The whole experience was very frightening for [E.B.] and he did not know what to do. The perpetrator put [E.B.] on the bed and started having anal sex with him. Is that what you told him, sir?" Meaning told you. "I don't think so, I don't think so I said anal sex." "You never told Dr. Riar anal sex?" Answer "No." Doctor, you're not sure that he did tell you that Mr. Saxey had anal sex with him?

A If we are talking about the term, like if he used the term "anal", I'm not, your honour, sure whether he said anal sex, but he was very clear that there was intercourse.

Q There was intercourse?

A Yes.

Q And between men that's what it would be?

A Yeah. That's what I probably presumed, yes.

Q And when we looked in your notes it does, you know, to refresh your memory, does say anal, doesn't it?

A Yeah, I wrote that, but I must have asked him "Did he put his penis inside you?" And he must have said yes or something, yes.

Q Okay.

A And if he used the term, I can't say that, whether he used that term or not.

Q But that's what he meant?

A Yes. What I meant, yeah, I mean he told me that, that's what I wrote, that it was anal sex.

Q Okay. Maybe I can start again. He told you that Mr. Saxey had intercourse with [E.B.]?

A That's right.

Q Okay. And that would have to be anal sex?

A That's right.

[29] Defence counsel pointed out that in cross-examination, the plaintiff denied telling Dr. Riar that the sexual assaults included anal sex. He testified, as follows:

[30] Dr. Janke testified that he would normally expect some variability in the description given by a victim of sexual assault to different persons. He also testified that he would not expect any major differences, explaining that he would expect the victim to be able to relate all the major elements of the assault he had experienced, and not to make sudden recall or to add to the descriptions some extreme form of abuse, or for that matter retract it subsequently.

[31] In my opinion, the plaintiff's testimony that he was frequently sexually assaulted by Saxey is reliable. In arriving at my conclusion, I think it must not be forgotten when assessing the credibility of the plaintiff's testimony about the assaults that the plaintiff was recalling details of events long after the time that they had happened to him, as well as the fact that, according to the plaintiff, the length of time between the assaults varied, and that given the frequency of the assaults they have tended to mix together in his mind so that he cannot now remember them all individually.

[32] As for the controversy surrounding the plaintiff's testimony about partial anal penetration, it strikes me that the plaintiff did not consider this manner of the abuse upon him by Saxey as being a major element of the sexual assaults, but rather as being perhaps incidental to his description of the simulated intercourse. In any event, I do not consider there to be a serious conflict in the evidence between the plaintiff and Dr. Riar on this narrow point. First, the plaintiff did not deny that he told Dr. Riar that the sexual assaults included anal penetration. Rather, he denied telling Dr. Riar that the sexual assaults included "anal sex". By the same token, Dr. Riar did not purport to quote the plaintiff verbatim. He said, in chief, that he did not go into the graphic details of the sexual assaults with the plaintiff, partly because the plaintiff was, "quite anxious". Most significantly, when the plaintiff's direct testimony describing the assaults was put to Dr. Riar, and he was asked whether it was the same as what the plaintiff had described to him, Dr. Riar answered, "yes, along that lines, yes. I won't -- I don't recall partially, but that's what I would say, yes". In cross-examination, Dr. Riar was not sure whether the plaintiff had actually used the words "anal sex", although he was certain that the plaintiff told him that the assaults included intercourse. I think that plaintiff's counsel's argument that both witnesses were merely describing the same facts using different words is a reasonable inference to draw from their testimony.

[33] Furthermore, I agree with plaintiff's counsel that the question of whether or not there was anal penetration is largely insignificant in any event in light of the following testimony by Dr. Riar:

[34] As for the other factors argued by counsel for the Oblates in her challenge to the reliability of the plaintiff's testimony about the manner and frequency of the sexual assaults, I think, with respect, that they are without merit.

[35] First, Dr. Janke testified that he would expect to see behavioural problems in a child who suffered repeated sexual assaults. Concepcion Anita Tavara, whose religious name is Sister Anita, now retired, was at Christie from 1962 until 1964. She testified that if she was involved in supervising a dance on the weekend she would see the plaintiff, or she would see him at choir practice. She said that she did not notice any behavioural problems with the plaintiff.

[36] Thomas Richard Cavanaugh, whose religious name is Brother Cavanaugh, was at Christie in 1964 as a child care worker. He testified that he knew the plaintiff and said that he could remember, "[E.B.] was a big boy for his age but he was certainly a good boy. He was a typical boy. Certainly he did things at times that you wished they wouldn't but at the same time he was a good kid."

[37] When Brother Cavanaugh was asked whether he ever experienced any behavioural problems with the plaintiff, he said, "No not any".

[38] Thomas Lorne Mackey, whose religious name is Father Mackey, said that he knew the plaintiff, and used to call him by the nickname, "Zeek". He said that the plaintiff would often just drop into his office while passing by, that he enjoyed the plaintiff's presence, that the plaintiff was a bit of a joker and a very pleasant fellow who had a great smile and a good sense of humour. As well, Father Mackey would see the plaintiff out on the ball field, or at dances and said that for a quiet fellow he did very well, that he was quite popular with the girls, and that it was just a pleasure to see him.

[39] When Father Mackey was asked whether he ever noticed any behavioural problems with the plaintiff, he answered:

[40] Stella Theresa Distaso, whose religious name is Sister Mary Laura, started working at Christie in 1960. She was a teacher assigned to Grades 5 and 6, and was also a child care worker for the senior girls. She said she taught the plaintiff in Grades 5 and 6. When asked what he was like, she said:

[41] As plaintiff's counsel pointed out, the impressions of Sister Anita, Brother Cavanaugh, Father Mackey and Sister Mary Laura of the plaintiff date back well over 30 to 40 years about one child in a school of hundreds of children. Therefore, I agree with plaintiff's counsel that their evidence is self-serving on this point and should not be accorded substantial weight. In my view, this is particularly so in the case of Brother Cavanaugh's testimony, who after stating that he never had any behavioural problems with the plaintiff, said, when asked whether he ever had to punish the plaintiff for being out of bounds, or having left the boundaries or not obeying rules, "Yes, yeah, I had to punish him for a number of things". He also "vaguely" recalled that he might have punished the plaintiff for stealing from the candy goods store at Christie.

[42] Another factor raised by the Oblates was the evidence of Brother Cavanaugh describing Saxey's living quarters, which were on the top floor of the staff building. He said there were two bedrooms, sort of a sitting room, and a place where Saxey could do a little cooking, and that access to Saxey's living quarters was by way of a set of stairs at the back of the building.

[43] Defence counsel also referred to the evidence of the defendant Williams who testified, in cross-examination, as follows:

[44] Defence counsel submitted that the above descriptions of Saxey's living quarters, and who lived there were not consistent with the plaintiff's evidence on this point. Counsel referred to the plaintiff's description of Saxey's living quarters, as follows:

[45] Counsel contended that because Saxey shared his living quarters with Mr. Barney Williams this raised serious doubts that the abuse the plaintiff described could have gone on for so long without being detected.

[46] However, as plaintiff's counsel noted, the defendant Williams' testimony about Mr. Barney Williams sharing Saxey's living quarters was by way of an affirmative answer to a leading question in cross-examination, and that there was no other evidence on this point from any source, nor an indication of where the factual or evidentiary foundation for the leading question came from. Counsel also noted that Brother Cavanaugh was the only defence witness to whom a question on this point was directed. He testified, as follows:

[47] Counsel said that none of the remaining defence witnesses who were at Christie, namely Father Mackey, Sister Mary Laura or Sister Anita, were asked about Mr. Barney Williams, and whether he shared Saxey's living quarters. In the circumstances, I agree with plaintiff's counsel that the court should draw an adverse inference from defence counsel's failure to pose this question to any of the other defence witnesses.

[48] Further on this point, counsel noted that the Christie Codex Historicus for the date April 17, 1958 contains a reference to Mr. Barney Williams being "over from" the nearby village of Opitsat on that day.

[49] Regarding Brother Cavanaugh's evidence about the layout of the interior of Saxey's living quarters, plaintiff's counsel said that this evidence was not reliable. He pointed out that Brother Cavanaugh testified, in chief, that he had not been into Saxey's living quarters "that much" while Saxey was living there, and that he was in Saxey's living quarters after it had been renovated.

[50] In the result, I agree with plaintiff's counsel that the defence evidence does not undermine the reliability of the plaintiff's recollection as to the configuration of Saxey's living quarters. I also agree with plaintiff's counsel that the defence has not established that Saxey shared his living quarters with Mr. Barney Williams at the material times surrounding the events testified to by the plaintiff.

[51] Finally, as to the plaintiff's evidence on the timing of the assaults, defence counsel referred to the following evidence of the plaintiff, in cross-examination:

Q And did at any time Mr. Saxey ask you to do any jobs?

A No.

Q And you also have stated that Mr. Saxey lured you to his room around 4:00 o'clock; is that correct?

A Yes.

Q And (he) would find (you) when you were playing?

A Yes.

Q And he would take you to his place?

A Yes.

[52] Defence counsel argued that the evidence from the defence witnesses rendered the plaintiff's testimony on this point implausible. Defence counsel pointed to Sister Anita's testimony describing the children's activities during the "study hour" between 4:00 to 5:00 p.m. She said that the children came to classrooms where they were taught during the day, and that they would do the homework that was assigned to them as well as get extra help in any area that they were weak in. She said the teachers were always there with the children to help them, if they needed it.

[53] When Sister Anita was asked what she would do if a student was missing, she said:

[54] In chief, Sister Anita said that after 5:00 o'clock the children would go back to the dorms and get washed up for dinner, and that they would most likely not have that much time for play because the children ate at 5:30. She said there was always someone in the dorm with them as they were cleaning up.

[55] Father Mackey was also asked, in chief, about study hour. He answered, as follows:

[56] I disagree with the defence submission on this point because, in my opinion, the evidence does not establish that all of the assaults occurred at exactly the same hour of the day. It was the plaintiff's testimony that Saxey lured him to his room at, "around 4:00 o'clock", which, as I think plaintiff's counsel correctly suggested, could be interpreted to mean they took place sometime in the late afternoon, or possibly early evening.

[57] Accordingly, I am satisfied that the plaintiff has proven, to the required standard, that Saxey commenced assaulting him when he was seven years old, and that the assaults continued on a regular and frequent basis until he was 11 or 12 years old; that all of the assaults took place in Saxey's living quarters at Christie; that the sexual assaults consisted of fondling, masturbation and simulated intercourse, which included partial anal penetration. However, given that the plaintiff failed to testify at trial about the allegation of oral sexual abuse, I find that this allegation has not been proven to the requisite standard.

Having concluded that the plaintiff was sexually assaulted by Saxey, are the Oblates vicariously liable?

Answer: Yes.

[58] It is conceded by the defence that Saxey was an employee at Christie during the material times, and there is no denial regarding the nature of the employment relationship between Saxey and the Oblates.

[59] As to the current test for vicarious liability, in Bazley v. Currie ("Children's Foundation"), [1999] 2 S.C.R. 534, and a companion case, Jacobi v. Griffiths ("Boys' and Girls' Club"), [1999] 2 S.C.R. 570, the Supreme Court of Canada set out the law with respect to the imposition of vicarious liability on an employer.

[60] In Children's Foundation, supra, McLachlin J. (as she then was), at para. 10, answered the question of whether employers could be held vicariously liable for their employees' sexual assaults on persons within their care, by approving of and summarising the Salmond test:

[61] In dealing with the second branch of test, the following approach was put forward by her Ladyship in para. 15:

[62] In considering "broader policy rationales" McLachlin J., in para. 41, set out the following principles to be followed in finding vicarious liability where precedent cases are inconclusive:

[emphasis in original]

[63] McLachlin J. provided further guidance, stating at para. 42:

[64] McLachlin J. also laid out some additional factors in paras. 43-45, as follows:

a) the employee is permitted or required to be alone with a child for extended periods of time;

b) the employee is expected to supervise the child in intimate activities like bathing or toiletting;

c) the employment puts the employee in a position of intimacy and power over the child enhancing the risk of the employee feeling that he is able to take advantage of the child and the child submitting without effective complaint; and

d) time and place may be relevant.

[65] Defence counsel submitted that the "opportunity" cases, as described by Binnie J. in Boys' and Girls' Club, supra, do "unambiguously determine on which side of the line between vicarious liability and no liability the case falls". In discussing the opportunity cases, Binnie J. states, at para. 45, as follows:

[66] Defence counsel relied heavily upon the decision in G.(E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89 (S.C.), where the defendant school board was found not to be vicariously liable for the sexual assaults committed by a janitor on a student. In that case, Vickers J. found that the janitor did not have power or authority to discipline a child misbehaving at the school. Relying on the Court of Appeal decision in Children's Foundation (1997), 30 B.C.L.R. (3d) 1, Vickers J. held that the janitor had no direct duties involving the students, and that in performing his duties as janitor he was not assigned specific duties to care for and provide support to children and children were not assigned to his care. At para. 52 Vickers J. said:

[67] In Boys' and Girls' Club, supra, Binnie J. cited with approval the decision of Vickers J., and other "opportunity" cases, stating at para. 51, as follows:

[68] G.(E.D.), supra, was appealed: see (2000), 86 B.C.L.R. (3d) 191 (C.A.). The trial judge's finding on vicarious liability was not an issue on the appeal. In reasons handed down March 27, 2001 Prowse J.A. noted that this was not surprising given Binnie J.'s approval of the trial decision.

[69] Counsel for the Oblates submitted that the fact situation in the case at bar was one of "mere opportunity". Counsel argued that Saxey, a baker at Christie, had no special power or authority over the children, and said that while Saxey's position as an adult at Christie lead to respect from the children, this would be no different from the respect a janitor would receive from children at a public school, as was the case in G.(E.D.), supra.

[70] Counsel also submitted that the test is not whether it was "reasonably foreseeable" that the plaintiff might be sexually assaulted while at Christie, or that "but for" Saxey's position at Christie he would not have assaulted the plaintiff, but rather, according to McLachlin J., at para. 42:

[71] Defence counsel also referred to the decision in Boys' and Girls' Club, supra, where Binnie J. reviewed cases where the employer's enterprise created a risk that went beyond the mere creation of an initial opportunity for the assailant to encounter his victims. Counsel said that in such cases, it was only when a strong connection between the job-creating enterprise and the sexual assault was enhanced by job-created power and intimacy that vicarious liability was found. Counsel reviewed A.(C.) v. C.(J.W.), (1998) 60 B.C.L.R. (3d) 92 (C.A.); B.(K.L.) v. British Columbia (1998), 51 B.C.L.R. (3d) 1 (S.C.). Counsel also reviewed M.B. v. British Columbia, 2000 BCSC 735, appeal dismissed (2001), 87 B.C.L.R. (3d) 12 (C.A.); and John Doe v. Bennett (2000), 190 Nfld. & P.E.I.R. 277 (Nfld. S.C.(T.D.)).

[72] Defence counsel also submitted that other residential school cases decided to date have relied on the enhanced job-created parent-like power and intimacy to find vicarious liability. For example, in B.(W.R.) v. Plint (1998), 52 B.C.L.R. (3d) 18 (S.C.), the United Church and Canada were found to be jointly vicariously liable for the assaults committed at an Indian residential school by the dormitory supervisor. Relying on the Court of Appeal decision in Children's Foundation, supra, Brenner J. (as he then was) determined that there was a sufficient connection between the duties of the dormitory supervisor and his misconduct, as a result of the power conferred on him by his employment. He stated, at para. 24, as follows:

[73] The test from Children's Foundation, supra, was also applied in M.(F.S.) v. Clarke, [1999] 11 W.W.R. 301 (B.C.S.C), a case involving sexual assaults by a dormitory supervisor at an Indian residential school. In that case, Dillon J. found that there was a strong connection between the type of risk created by the employment of the dormitory supervisor and the sexual assaults: the supervisor was in a parental position with prolonged and intimate contact with the children in his care; the children were away from their home and parents making them particularly vulnerable; the social architecture of the school ensured that the dormitory supervisor was not viewed just as a parent, but as the most powerful influence in the children's lives; the supervisor was white as were all the staff, making the supervisor even more unassailable; and the supervisor's room was immediately adjacent to the dormitory. At para. 140, Dillon J. said:

[74] Dillon J. found that the precedents set by the Children's Foundation, supra, and Boys' and Girls' Club, supra, favouring vicarious liability where the employee was in a parent-type relationship, were decisive.

[75] Counsel also cited V.P. v. Canada (Attorney General) and Starr (1999), 186 Sask. R. 161 (Sask. Q.B.), and D.W. v. Canada (Attorney General) and Starr (1999), 187 Sask. R. 21 (Sask. Q.B.), two decisions involving the same perpetrator at the same Indian residential school. In both cases the trial judges found vicarious liability: in V.P., at para. 107, because, "the discipline power the administrator had over the student residents gave the administrator meaningful power over the children and staff and meaningful parent-like power over the children"; and in D.W., at para. 24, because the perpetrator was the legal guardian of the children with 24-hour-a-day parental authority and control over them.

[76] Counsel for the Oblates submitted that the instant case is one involving the creation of opportunity, without job-created power over the victim or other link between the employment and the sexual assaults. Counsel said that parent-like authority of the employee over the student is the common finding in the cases that leads to the imposition of vicarious liability and that Saxey only received the normal respect expected to be given by children at an educational institution. Counsel submitted that there was nothing parent-like about his relationship with the plaintiff and there was nothing to constitute the "strong connection" required by the risk created by the employer's enterprise and the wrongful act. Counsel said that while Saxey's duties provided an opportunity for him to come into close contact with the plaintiff, his duties as a baker did not put him in a position anywhere close to that of a surrogate or foster parent-like relationship. Thus, counsel argued, the opportunity cases do provide an unambiguous precedent, with the result that there should be no finding of vicarious liability against the Oblates for the sexual assaults committed by Saxey.

[77] I disagree with the defence argument on this issue for several reasons. First, the mere fact that many cases imposing vicarious liability happen to involve "parent-like" fact situations should not be construed as meaning that such situations are a prerequisite for the imposition of vicarious liability. To the contrary, McLachlin J. in Children's Foundation, supra, after noting the "parental relationship" and other factors in that case stated, at para. 58:

[78] As well, Justices McLachlin and Binnie expressed the view in Boys' and Girls' Club, supra, that creation of a parent-type relationship does not constitute a precondition to vicarious liability in child abuse cases. At para. 26 McLachlin J. said, as follows:

[79] Secondly, the decision in G.(E.D.), supra, arose in a very different factual context than the instant case. It concerned sexual assault by an employee, a janitor at a public school. As Vickers J. notes at para. 16 of his decision, the janitor had no job-created power or authority over the plaintiff. The circumstances which existed at Christie were vastly different by comparison. For example, the defendant Williams described the strict regimen at Christie:

[80] The defendant Williams' recollection of the treatment by both religious and lay staff members was of physical and emotional violence, deprivation, belittling, and intimidation. He described the discipline at Christie as "very threatening" and "very stern". L.B. described discipline at Christie as "very strict, very harsh".

[81] Plaintiff's counsel submitted that fear played a large role in maintaining order and discipline within Christie during the time of the plaintiff's attendance. He said that the link between fear and obedience was clear from the plaintiff's cross-examination, as follows:

[82] With regard to the plaintiff's fear at Christie, Dr. Riar testified, in cross-examination, as follows:

[83] The defendant Williams rejected counsel's suggestion that the First Nation's cultural value of respect for one's elders was no different than the respect for adults taught at Christie. He stated "[t]hey didn't teach you stuff like that in that school. They taught you fear, lots of fear. They got everything they wanted through fear and intimidation. I don't think that's respect".

[84] Most importantly, children at Christie were told to show respect to the adult staff members and do what the staff asked them to do. Such a rule applied to all staff members including Saxey. On examination for discovery, Brother Cavanaugh gave the following important piece of evidence:

[85] Sister Anita agreed with these answers given by Brother Cavanaugh. She added "I would say when they were assigned a charge they would have to do what the kitchen staff said and in the laundry, they would have to do what the laundry staff said".

[86] Brother Cavanaugh also testified that children who worked in the kitchen took their instructions and directions from the cooks. He agreed that all kitchen staff had the power to instruct the children when they were doing chores in the kitchen.

[87] The plaintiff testified that he and other children at Christie had to do what they were told to do by adult staff members. L.B. testified that he recalled children being told at the beginning of the year, and just about every month, that the children had to listen to the lay staff if they requested children to do something. The defendant Williams testified that the children were expected to listen to and obey staff, including Saxey.

[88] The defendant Williams described how the Oblate disciplinarians made it clear to the children that they were supposed to listen to and obey the lay staff:

[89] The plaintiff testified about how Brother Blackburn would "threaten to shove a bar of soap in your mouth and wash out your mouth" for speaking against a lay staff member. L.B. recalled that both the religious and the lay staff had "ultimate power in that institution".

[91] L.B. recalled that lay staff assigned various tasks in the course of taking garbage to the dump, doing laundry, repairing the road, transporting supplies, and cleaning up the schoolyard and beach. The plaintiff identified that lay staff would instruct children to do tasks in the course of their supervision of particular chores relating to garbage detail, laundry chores, kitchen chores related to cleanup, and food preparation.

[92] Brother Cavanaugh was asked in direct examination whether "children would be asked to do spot chores." He responded "not normally". Plaintiff's counsel argued that whether such spot chores were "normally" assigned was not the relevant point. He said that given the supervisory role of lay staff in assigned chore situations, a child at Christie would reasonably perceive all staff members as having blanket authority, regardless of the particular context. He claimed that such implicit power and authority was an unavoidable corollary of the lay staff's supervisory functions during assigned chores.

[93] Plaintiff's counsel contended that while Saxey had bakery duties, he was clearly more than just a baker at Christie. He pointed to the Olbates' interrogatory answers which identified Saxey as a "Boat Operator and Baker". Principal Kearney's staff lists for 1959 to 1961 identify Saxey's functions as "bakery and maintenance". A report of the Regional Dietician in 1964 identifies Saxey as being "[f]ull-time at school" and only a "[p]art-time baker". Sister Anita recalled that Saxey was "primarily the baker and the boat driver and maintenance person". The defendant Williams recalled Saxey as "a baker" who sometimes "worked on freight". Counsel submitted that Saxey's general role at Christie was evidenced by the July 1960 letter from Principal Noonan which identifies Saxey as the "main cog around here right now". Counsel said that the evidence discloses no clear demarcation of Saxey's employment duties, powers and responsibilities.

[94] Counsel also said that due to understaffing at Christie, there could be no rigid delineation of employment duties for any staff member. Duty allocations were entirely oral. If work needed to be done at Christie, everyone, staff and children were expected to contribute. According to the evidence of Sister Anita and Brother Cavanaugh, Christie was not a place where staff were heard to say, "I'm not going to help you with that particular task because it's not a part of my job description".

[95] Counsel also pointed to a photograph of Saxey "burning trash" with a tractor. He said that this was another one of many miscellaneous tasks that comprised Saxey's role at Christie. The plaintiff testified that Saxey used to give rides to the children on the tractor. He was cross-examined, as follows:

[96] The plaintiff also testified that Saxey "spent a lot of his time in" the bakery and that sometimes he would see Saxey preparing dough for the bread in the bakery. The plaintiff also recalled seeing children in the bakery at the same time as Saxey. He described how there were stairs coming from the upstairs senior boys' dormitory from which he could see into the bakery. He testified that he recalled seeing children through that window in the bakery "helping Martin bake bread". The plaintiff further testified, as follows:

[97] Evidence was called that Saxey baked bread at night. However, there is no evidence that Saxey was never in the bakery at other times of the day. The defendant Williams testified that he often saw Saxey in the bakery from the morning until the late afternoon. He recalled that many children worked in the kitchen and bakery, both boys and girls.

[98] Brother Cavanaugh estimated the amount of bread baked at Christie to be 30,000 loaves per year. He testified that there was "a lot of work involved in making the bread". Father Mackey estimated that Saxey would "bake in the realm of 200 loaves a night not every night consistently but depending on need". He agreed that such an amount of baking required "very much" cleanup. Counsel argued that given the magnitude of the daily task of bread baking, it is inconceivable that children would not be involved in some of that work, as testified to by the defendant Williams and the plaintiff.

[99] Counsel also argued that the documentary evidence supports the testimony of the plaintiff and the defendant Williams on this point. The 1953 Regional School Inspector's Report states that older girls are "obliged to do chores in the bakery and kitchen". The 1954 Regional School Inspector's Report states that "[s]enior girls receive practical training in the bakery, kitchen, laundry and sewing room". The 1955 Regional School Inspector's Report states "[a]ll senior and intermediate girls assist in the kitchen and bakery". The 1959 Regional School Inspector's Report states "[t]he senior girls receive good experience as a result of their chore duties in the kitchen and bakery". There is a photograph from 1960 showing several girls at Christie preparing loaves of bread dough. The photo is titled "Bakery". A 1964 report states that children's chores included "slicing the bread".

[100] Plaintiff's counsel submitted that the Oblates called evidence for the apparent purpose of drawing a strict distinction between the kitchen and the bakery. However, counsel submitted that it was unlikely that the people at Christie between 1957 and 1962 recognized such a distinction. For example, Sister Mary Laura testified that the "Bakery" photo was actually taken in the adjacent kitchen. After baking, the bread was sliced and stored in the adjacent kitchen. The bakery was accessible only by passing through the kitchen. Counsel submitted that, in reality, the bakery was simply the part of the kitchen where bread was baked.

[101] The testimony of Brother Cavanaugh was only that children did not work in the bakery; the bakery being the small room "just outside of the kitchen sort of adjacent to the kitchen". In direct examination, the only reason he could think of for this practice was because of the danger posed by the dough-making machine and the ovens. In cross-examination he added that he believed that "Martin would prefer to bake by himself." Brother Cavanaugh did not testify that children performed no bakery-related chores in the adjacent kitchen. The documentary evidence clearly indicates they did.

[102] Father Mackey's testimony was to the same effect. Counsel said that he focused on the narrow and irrelevant issue of whether children worked in the adjacent room "where the oven was":

Q       I don't want you to guess but do you know if the children had any role in such clean up?

A This is absolutely not a guess your lordship. As I said earlier, Martin was very jealous of his bakery and would not allow any of the children to do any of the clean-up in the bakery.

[103] Counsel argued that as the staff member responsible for bread baking, Saxey would certainly have had implicit, and probably had explicit authority over the children performing kitchen and bakery-related chores, such as clean-up, bread slicing and dough preparation. He said that whether those children were in the bakery, or a few feet to the north in the adjacent kitchen was immaterial.

[104] Father Mackey's categorical assertion that Saxey permitted "absolutely no one in the bakery" is contradicted by documents recording that Ms. Paul, the cook, lost a part of her finger in the big bread mixer in December 1963. Brother Cavanaugh testified that this particular machine was located in the bakery. Counsel submitted that, indeed, this accident, which preceded the arrival of both Brother Cavanaugh and Father Mackey, may have prompted a change in practice concerning access to the bakery room after 1964.

[105] Counsel submitted that this much was clear from the evidence of Father Mackey: Saxey was "in charge" of the bakery and had powers second only to the principal in that regard. The bakery was a room adjacent to the kitchen and accessible only through the kitchen. He said that there was abundant evidence that the kitchen was a part of Christie where many children worked under the direct authority and supervision of lay staff members. Father Mackey testified that Saxey exercised his authority to "not allow anybody else" in the bakery and to "not allow any of the children to do any of the clean-up in the bakery". Counsel also contended that the fact that Saxey had such power and authority over the children by virtue of his employment was highly relevant, and the fact that Saxey chose to exercise his power and authority so as to exclude children from the bakery was beside the point.

[106] Counsel also argued that the fact that the plaintiff never helped Saxey in the bakery did not mean that the plaintiff was shielded from the power and authority that Saxey held by virtue of his position and status within Christie's institutional environment. He said that children in this setting would perceive Saxey as having authority regardless of whether they encountered him in the bakery, in the kitchen, or elsewhere at Christie.

[107] Among the specifically enumerated subsidiary factors to be considered in determining the sufficiency of the connection between the employer's creation or enhancement of the risk of sexual assault is "the opportunity that the enterprise afforded the employee to abuse his or her power". See Children's Foundation, supra, at para. 41. McLachlin J. commented further on the factor of opportunity, at para. 40:

[108] On this point, plaintiff's counsel noted that Saxey lived in the upper floor of a building situated on that portion of the grounds of Christie to which the junior and senior boys were given free access. Directly outside his window were the swings where children played. He had unrestricted access to everywhere where children might be found playing. The plaintiff testified that during recess the children would routinely play on the swing or in the yard close to where Saxey lived.

[109] The defendant Williams recalled that Saxey "lived in amongst us".

[110] The children and the lay staff at Christie referred to each other by their first names. There was no rule at Christie prohibiting the adult staff members from forming casual acquaintances with the children. Staff members did in fact play with the children and were allowed normal physical contact in the course of such play. Counsel said that whether or not Saxey elected to engage in such activity with the children was immaterial.

[111] The plaintiff testified that during longer periods of free time, children played at different locations such as in the gym, the beach, on the rocks, or in the trees. Brother Cavanaugh testified that children were allowed outside in the evening until it was close to bedtime.

[112] When asked whether a supervisor was present during recess, the defendant Williams testified "No. They were usually busy doing whatever they had to do". The plaintiff recalled that the children would often climb trees in the back wooded area and that there "never used to be an adult there, there just used to be boys". During free time, the plaintiff testified that adults could be found "wandering around". He agreed, in cross-examination, that the supervisors were seldom immediately present but were "around":

[113] According to Brother Cavanaugh, the reality of the supervisory structure at Christie was that "you'd be involved with part of the group in an activity, or whatever, and the other group was free to -- to roam around".

[114] The plaintiff recalled that there were organised sports on some days, but not every day. L.B. did not recall organised activities being a common or every-day event. The plaintiff recalled some improvement in terms of sports during his final year at Christie, with the arrival of Father Mackey. Counsel submitted that it is likely that organised sports were much less common prior to the tenure of Father Mackey as principal, and that the higher federal grants in the mid-1960s may have allowed for more organised sporting activities as well.

[115] Organised events, such as volleyball or basketball, involved a portion of the students, while the remainder were free to participate in other activities at other locations (to "roam around" as Brother Cavanaugh stated). The defendant Williams testified, as follows:

[116] Counsel argued that organised activity ensured that those students who were not directly involved were unsupervised, and that any given organised activity would have consumed the attention of the limited staff and confined them to a particular location. He said that in such circumstances, organised activity would have actually enhanced the opportunity for abuse.

[117] In light of the evidence outlined above, I agree with plaintiff's counsel that G.(E.D.), supra, and the other cases relied upon by defence counsel are of limited value to assessing the plaintiff's claim against the Oblates. I am persuaded by plaintiff's counsel's argument that the cases relied upon by the defence do not "unambiguously determine on which side of the line between vicarious liability and no liability the case falls". Therefore, I find that this issue must be determined by the application of the policy based approach as prescribed in Children's Foundation, supra.

[118] In addressing this approach, plaintiff's counsel contended that, in summary, Saxey's living quarters was located in the midst of an overcrowded and understaffed playground populated by especially vulnerable children; and that the closed boundaries of Christie, its custodial character, its isolation, and the high ratio of students to adult staff members materially enhanced the risk of abuse. Counsel also submitted that while Saxey's approach to the plaintiff was one of superficial enticement with candy and other sweets, it was clear from a close reading of the plaintiff's evidence that Saxey used authority to exert power over the plaintiff:

[119] Plaintiff's counsel argued that while the plaintiff did not say that he was threatened, he said it was "like being" threatened and that the only thing that is "like" being threatened is the experience of being told to do something by a person in authority. Counsel also argued that job created authority need not be the sole source of authority facilitating Saxey's sexual assaults upon the plaintiff. He said it was sufficient that the authority conferred upon him contributed to his ability to perpetrate the assaults, and thus, materially enhanced the risks of the assaults occurring.

[120] On the other hand, defence counsel submitted that of the factors put forward by McLachlin J. in Children's Foundation, supra, few of them applied to the facts in the case at bar. Counsel also referred to the following point made by McLachlin J. at para. 46 of the case:

[121] Defence counsel contended that Saxey's employment as a baker at Christie did not give him "special opportunities" and, in particular, did not give him a power or dependency relationship with the children at Christie. Counsel submitted that if sexual abuse perpetrated by a baker at a residential school can give rise to vicarious liability, it is difficult to see how this could be based on anything other than the mere fact that it was a residential school. Counsel also contended that such wide-ranging vicarious liability was not what was foreseen by the Supreme Court of Canada decisions. With respect, I disagree with the defence position and prefer plaintiff's counsel's analysis and argument on this issue.

[122] Plaintiff's counsel submitted that the key to the determination of this issue is whether the operational characteristics of Christie, as an enterprise, created and materially enhanced the risk of the sexual assaults perpetrated by Saxey upon the plaintiff. He carefully and thoroughly reviewed the evidence of the operational characteristics of Christie under several headings, which he summarised, in argument, as follows:

a) The children were separated from their families and held in custody all day and every day. Brothers were separated from sisters; older siblings were separated from younger siblings. Christie was geographically isolated, enhancing its closed institutional character and exacerbating the severance of relations with parents and extended family.

b) Christie was chronically overcrowded and understaffed. The number of children held in custody exceeded the capacity of the supervisory staff to effectively supervise.

c) Adult employees of Christie, including Saxey, lived within the closed boundaries of the school,