IN THE SUPREME COURT OF Nova Scotia

Citation: B.M.G. v. Nova Scotia (Atttorney General), 2007 NSSC 27

Date: 20070129

Docket: 152960

Registry: Halifax

Between:

B.M.G.

Plaintiff

v.

Attorney General of Nova Scotia

Defendant

 

Judge:	The Honourable Justice Frank Edwards
Heard:	November 27, 28, 29, 30, December 1, 4, 5 and 6, 2006, in Halifax, Nova Scotia
Counsel:	Kevin MacDonald, for the Plaintiff Glenn Anderson, Q.C. and Terry Potter, for the Defendant

  INDEX

 

Introduction	2
Background	2
Schooling	4
Psychological / Psychiatric Records	6
Work Record	9
The Lalo Sexual Assaults	15
The Shelburne Sexual Assault	18
Credibility of BMG	20
What the Defendant knew or should have known in 1977	21
The 1978 Complaint	22
The 1989 Report	25
Evidence of J.G.	25
Rumours about Lalo	27
Joseph A. MacKinnon	30
The Hayes Report	31
Negligence	39
Fiduciary Duty	43
Vicarious Liability	45

(a) significant connection	46
(b) policy	52
(c) other cases	53
Causation	58
General Damages	63
Past and future loss of income (The Actuarial Report)	66
Summary of Damages	69

By the Court:

 

[1]              Introduction:  The Plaintiff, BMG, brought this action for damages he sustained as a result of sexual abuse by his probation officer, an employee of the Defendant. I have dismissed the Plaintiff’s claim in negligence and for breach of fiduciary duty. The Defendant is vicariously liable for the wrongdoing of its employee.

[2]              The Plaintiff is therefore entitled to $125,000.00 (plus prejudgment interest) in general damages and $500,000.00 all inclusive for past and future loss of income. The Plaintiff shall also have his costs and reasonable disbursements to be taxed.

[3]              Background: The Plaintiff, BMG, was born on April (editorial note- date removed to protect identity), 1963. He is not sure who his birth parents were. He and his biological sister, S (d.o.b. June (editorial note- date removed to protect identity), 1965) were adopted by M and D. M was a successful insurance underwriter and D did not work outside the home. There is also one step-sister, I, who is about six years younger than BMG.

[4]              Until age seven, BMG enjoyed a normal home life. During that time, the family resided at 24 xxxx Drive in Halifax. That situation changed for the worse after the family hired a live-in maid, J, in 1970. Between 1970 and 1972, D left the home and ultimately moved to Ontario. During that period, M married J who according to BMG and S, became a strict and extremely abusive step-mother. (I am conscious of the fact that, for purposes of this lawsuit, I have to make findings against M and J without having had the benefit of hearing from them. M died in 1990. The reader should be aware that M and J have never had the opportunity to defend themselves.) In 1972, M and J moved the family to 77 xxxxx Crescent in the Clayton Park area of Halifax. M and J had two children but BMG has had no contact with them.

[5]              On occasion J would either lock BMG in or out of the house or in or out of his bedroom. He was not allowed access to the refrigerator. J insisted that BMG come home immediately after school. When he was very small, she would regularly beat him on the buttocks with either an 18" stick or a broom. On one occasion, she hit him on the crotch with the broom. BMG says that when he got bigger his father would hold him while J beat him. He says that his father hit him with his belt a few times.

[6]              BMG's account of the abuse suffered at the hands of his father and J is substantially corroborated by the evidence of BMG's sister, S. S testified that their home life was physically and mentally abusive. She says she and BMG were told they were no good. Having been adopted, they were told they did not belong in the family and that they were going nowhere. S confirmed beatings with the belt, broom or brush and described how J would dig her fingernails into S's hand. The beatings of S and/or BMG were an almost daily occurrence.

[7]              BMG testified that, while he never actually saw S being beaten, he could hear what was going on in her room. S specifically recalled that when her brother was being beaten, J or M would hold him down and the other would hit him. She says that both she and BMG, on separate occasions, were locked in the basement. S testified that BMG's abuse was worse than hers and that he got the brunt of the abuse. She says that, when BMG had left the home, she became the focus. S confirmed that BMG frequently ran away from home to escape the abuse.

[8]              BMG's method of coping with the abuse was to run away. Usually he would not go far and would be returned to the home within a day or two. This continued between 1972 and 1975. In 1975, BMG saw a psychologist or psychiatrist for two months. There are no records of these consultations.

[9]              Schooling: In September 1975, BMG began Grade VII at Clayton Park Junior High School. Unfortunately he was expelled in January 1976. His father then enrolled him in Rothesay College, a private boarding school in New Brunswick. Between February 1976 and June 1976 he completed his Grade VII at Rothesay. BMG started Grade VIII at Rothesay but remained there only for September and part of October 1976.

[10]         BMG’s adjustment at Rothesay was not smooth. He ran away on one occasion and made his way to Ontario to visit his adoptive mother D. He was in Ontario just a few days when he was recovered by his father and returned to Rothesay. In October 1976, he ran away and returned to Halifax. By this time, the family had moved to 11 xxxxx Drive. His father had made it clear to him that he was not welcome at home. There is no record of school attendance during the months of November and December 1976. Between January and March 1977, however, he did attend Grade VIII at Cornwallis Junior High School. He lived in a boarding house during that time.

[11]         On January 31, 1977, BMG pleaded guilty to a weapons charge under the Criminal Code. My understanding is that the charge related to unsafe use and possession. There is no suggestion of violence or violent intent. BMG was placed on probation and required to report once a week to his probation officer, Cezar Lalo.

[12]         On April 4, 1977, BMG was committed to the Shelburne School for Boys mainly because his parents deemed him to be unmanageable at home. Not long after his committal he ran away from the school and was apprehended by the police near Truro. When BMG was returned to Shelburne he was placed in a solitary cell where he says he was sexually assaulted by one of the staff (I will deal with this later). He was released on July 29, 1977 to Halifax but was recommitted on August 14, 1977, where he stayed until April 3, 1978. This time he did not stay on the grounds of the school itself but was sent to a group home in the town of Shelburne.

[13]         In September 1977, BMG applied for the two-year marine diesel course at the Shelburne Regional Vocational School. He attended that course from September 1977 until June 1978. On June 1, 1978, he was permitted to come to Halifax to attend his sister's bat mitzvah. He did not attend the ceremony and his father had long since made it clear to him that he was not welcome at home. In June of 1978, BMG ran away to find his mother in Ontario. He never returned to school again and consequently never completed the marine diesel course. He was not welcome in his mother’s home. At 15 years of age, he was clearly on his own. BMG considered himself a fugitive with no where to turn. So began almost twenty years of living under different aliases.

[14]         There is little evidence of what BMG did during 1979 and 1980. He says he lived on the streets of Toronto for a period of time and cris-crossed Canada several times. In 1981 he returned to Halifax and visited the family home to demand his bar mitzvah money. His father refused.

[15]         Psychological / Psychiatric Records: Between July 2 and August 5, 1981, BMG was admitted to the psychiatric unit of the Victoria General Hospital in Halifax. Prior to that he was in the Prince Albert Psychiatric Centre in Saskatchewan between May 16, 1981 and May 22, 1981. There is then a record of admission to the Medicine Hat and District Hospital Psychiatric Unit between September 27, 1982, and October 5, 1982. There is also a reference to a six-week admission in October 1982 to the Clarke Institute of Psychiatry in Toronto. However, the Clarke Institute records are not available.

[16]         Then there is a second admission to the Prince Albert Psychiatric Centre between December 7, 1982 and December 16, 1982.

[17]         There is also a record of admission to the Nova Scotia Hospital between February 10, 1983 and March 7, 1983. There are no psychiatric admissions after this date.

[18]         The psychiatric records between 1981 and 1983 depict a troubled youth having great difficulty coping with his situation. The discharge report from the Nova Scotia hospital dated August 13, 1981, for example, states the following under diagnosis: “Adjustment reaction of adolescence; mixed personality disorder”.

[19]         The Initial Assessment dated July 2, 1981, states the following under

 

Impression:

“This 18 year old man has much anger and hostility regarding his childhood. He appears to be of superior intelligence and since an early age, has been living on his own independently. He has schizoid tendencies and over the last two months has signs of a depression. However there is difficulty in abstraction as well as questionable disorders of thought content. (Emphasis added)

 

Provisional Diagnosis:

1.     Depression

2.     Probably schizophrenia, questionable schizoaffective, questionable personality disorder.

[20]         A psychological assessment done during his 1983 stay at the Nova Scotia Hospital states in part:

“There appear to be three major areas of intra-or inter-personal conflict which are causing (BMG) a great deal of inner turmoil from which presently he can see no satisfactory solutions. The first concerns his father. (BMG) has a great deal of anger towards his father and blames him for much of his current problems. In addition, I suspect there is much repressed anger towards his mother for her abandoning him vis a vis her divorce. Also, there are indications of a ‘fantasized’ incestuous relationship with his mother which has left him with unresolved guilt feelings. The third area of conflict concerns his own identity and sexual orientation. This latter area is the least clear but there appear to be elements of homosexual panic. Whether he has homosexual tendencies, fears of being homosexually raped, or is mainly confused about his sexual identity, is unclear. However whatever the specific nature, sexual concerns are a major issue for (BMG).” (Emphasis added)

 

[21]          There are references in the psychiatric records to BMG's history of lying. There are also some apparent inconsistencies with the proven record. For instance, there is a reference to him telling medical staff that he had obtained his journeymen's papers when that is clearly untrue. There are also references to his exaggerating his level of academic attainment. One reference is to his having reported a Grade IX education when the record is clear that he did not complete Grade VIII. I have to keep in mind that any such inconsistencies came from a troubled youth between the ages of 18 and 20 years. They have little bearing on the credibility of the 43 year old individual who testified before me. Much of the evidence I heard from BMG has been substantially corroborated by other evidence and witnesses. I shall refer to such corroboration in greater detail later.

[22]         Interestingly, the 1981-83 psychiatric records are in BMG’s real name. If he considered himself a fugitive since 1977, why did he risk detection by being admitted under his real name? The evidence does not provide a clear answer. BMG was genuinely seeking help in sorting out the mess his life had become. Evading detection at that point was not his priority.

[23]         BMG testified, and I accept, that he did use aliases prior to 1983. He has used the name D.B. since 1986. I have no doubt that the initial use of false identities is largely attributable to the Lalo assaults. As BMG testified, he lied about his background in order to deal with feelings of inadequacy. After a time, BMG regarded the alias D.B. as his true identity. It took an RMCP investigation to force him to confront that fact. Even then, he chose to keep the name D.B. because that is the name of the person he had become.

[24]         Work Record:    As noted, after BMG left Shelburne in May 1978, he went to Ontario and made contact with his mother. He was 15 years of age. BMG testified that his mother's new husband did not welcome him. BMG says he then went to a homeless shelter and would get day jobs; “anything to feed myself”. BMG says he was in Ontario at least a couple of years, primarily in Toronto. He says he may have gone out west by hitchhiking. He thinks he spent some time in Winnipeg doing day jobs and then returned to Ontario.

[25]         In 1980, he worked at a summer camp in Saskatoon. For that work he received an honorarium though he could not recall the amount. He says he cris-crossed Canada many times and that he felt like a fugitive. His father had told him that he wanted no further contact. BMG said he never felt as good as anyone else and that he would lie about his background to get relief from his feelings of inadequacy.

[26]         BMG says that he has a hard time recalling what he did during the years between 1983 and 1986. In fact, he says that the time between 1977 and 1985 is “just a blur”. He does recall working as a diamond driller on several occasions in Northern Saskatchewan and Alberta. He remembers working for approximately a week in an abattoir in Brooks, Alberta. He also recalls working in Alberta with a scaling crew on a highway project for about eight weeks.

[27]         In 1986, BMG testified that he worked in California putting up wind turbines. He said he got the job after he was able to satisfactorily demonstrate his mechanical and technical ability (self taught through reading). He says he worked for 3 to 5 months making $11.00 per hour and that he was involved in the construction of approximately 45 towers. BMG described himself as a voracious reader. This in part explains why he was able to do so remarkably well with just a Grade VII education.

[28]         In 1986 BMG owned a 1983 Yamaha motor bike (that is how he references the dates). After California, he went across the United States from West to East on his bike. When he reached Vermont or New Hampshire he sold the bike. He then travelled to Northern Quebec where he spent a good part of 1987. He worked for six or seven months in James Bay, did some wiring for a community centre and installed audio and video setups for the Assembly of First Nations. To his credit, he managed to acquire the necessary technical abilities through self study.

[29]         In 1987, BMG and another individual pooled their resources and decided to do a canoe trip of 30 to 60 day duration in the Northern Manitoba. At some point on the Cochrane River, BMG's companion was stung by a bee. Apparently the companion had a bee-sting allergy and began convulsing. BMG was able to get his friend to Brochette, the last community they had encountered. The companion was airlifted to hospital.

[30]         While in Brochette, BMG met DU who decided to complete the canoe trip with BMG. They have been together ever since. At the time Ms. U was a first year nursing student who had an apartment in T, Manitoba. While living in T with Ms. U, BMG was able to secure employment with Native Communications Inc. This work had to do with the relocation and positioning of radio towers. BMG worked there during 1988, 1989 and part of 1990 earning approximately $12,000.00 to $15,000.00 annually.

[31]         In 1990 Ms. U graduated from her nursing course and the couple moved from T to xxxxx. The latter community was attractive because housing was cheap and Ms. U had a job opportunity there. The couple put down a $5,000.00 deposit on the purchase of a home. BMG worked out of the home repairing snowmobiles. He also obtained employment at a hunting lodge (E Lodge) during the summer and fall of 1990. He says he made about $2,000.00. He also did some part-time work for a company called West Star Contracting where he earned approximately $9.00 an hour. It was during that time that he built a log cabin outside the community. Apparently the structure burned down in 1995.

[32]         In 1995, BMG and Ms. U took a canoe trip on the MacKenzie River. It was during that trip that BMG made contact with a company known as Northrite Air in NW. BMG was able to obtain employment with that company for six to eight months earning $10.00 to $11.00 an hour. He lived in a rented mobile home while Ms. U returned to her job in xxxxx. She would return to NW for extended visits.

[33]         BMG stayed in NW a total of 18 months. That stay marked another significant turning point in his life. In addition to the work with Northrite Air, BMG opened his own snowmobile repair and sales shop. He says that while he made $8,000.00 to $10,000.00 per month, high overhead made it at best a break-even proposition. It was during that time that he got involved in a business venture with a local dentist by the name of RB. Apparently Mr. B financed the  purchase of six snowmobiles to the tune of $30,000.00. Unfortunately the fuel injection systems on the machines were flood damaged and therefore BMG had difficulty selling them. B was anxious to retrieve his $30,000.00 to the point that he reported the matter to the RCMP.

[34]         In the course of their investigation, the RCMP discovered that BMG was using an alias (DB) and that he had no official identification. BMG had been using the name DB since 1986. In fact, until the RCMP investigation, Ms. U thought that DB was BMG's real name. For a time, BMG tried to persuade the RCMP that he was DB. However, he did not have his own Social Insurance Number and told the RCMP that he had attended Queen Elizabeth High School in Halifax.

[35]         Within days, the RCMP were able to determine that BMG had not attended QEH and that he was using someone else's Social Insurance Number. BMG realized there was no way out and disclosed his real name to them. It was February 19, 1997. When they checked his story, the RCMP learned that BMG's father had died in 1990. They passed this information on to BMG along with the telephone numbers of his two sisters, S and I, who both now resided in Ontario.

[36]         BMG phoned his sisters and shortly afterward travelled to Ontario for a visit with his mother and the two sisters. He and S then travelled to Halifax where he made a complaint to the Halifax Police Department respecting the assaults by Cesar Lalo. After approximately seven days in Halifax, S returned to Ontario and BMG to his home in xxxxx, Manitoba. Between 1997 and this trial, there has been no communication between BMG and his sisters or other members of the family.

[37]         While in Halifax in 1997, BMG learned that he was the recipient of a “small inheritance” from his grandmother's estate. In cross-examination he was asked what he had done with the inheritance money. He replied that he had paid off his home, bought a vehicle, built a new cabin and bought some tools. Apparently he had also used the money to discharge his debt to Mr. B. He also used some of the money to take six weeks of flight training. The amount of the “small inheritance” was $197,000.00. Incidently, BMG says he would like to get his commercial flying license but that would require an additional $30,000.00 and he would also have to significantly upgrade his math skills.

[38]         Exhibit 3 is a medical declaration dated May 26, 1997. This was a medical BMG had to undergo before he would qualify for a pilot's license. Part of that declaration which was signed by BMG and the attending physician reads as follows:

“I hereby declare that I have never suffered from any of the conditions listed below

 

(j) nervous conditions requiring therapy or medication

 

(m) any other physical or mental disability

 

(n) alcohol or chemical dependence or abuse”

[39]     Counsel for the Defendant argued that this was a false declaration. I disagree. There is no evidence that BMG was diagnosed with a specific mental disability. In addition, while there is evidence that he experimented with drugs and drank some alcohol, there is no evidence of dependence or abuse. I am aware that BMG did indicate otherwise in response to a question in a test administered by psychologist, Dr. Hayes. That answer, indicated by checking a box in a lengthy list of questions, was inadvertent. I am satisfied that BMG never experienced alcohol or drug dependence or abuse.

[40]         In 1998, BMG continued seasonal work at the E Lodge. In 2002, he began working at the L R Lodge as a hunting guide. This too is seasonal and brings in approximately $9,000.00 to $10,000.00 annually. BMG has also taught himself to weld. He does small welding jobs and builds metal tree stands for hunters. At last count he has sold 54 tree stands at approximately $200.00 profit per unit. In three of the last six years he has been able to get a contract working on the winter road. For this he is paid $6,000.00 to $8,000.00 per season but the net profit is approximately 60 percent of that figure.

[41]         The Lalo Sexual Assaults:  The sexual assaults for which Lalo was convicted are admitted by the Defendant. There were three counts which occurred between January 28 and April 4, 1977. Lalo was convicted that between January 28, 1977 and April 4, 1977, he committed one count of buggery, Section 155 of the Criminal Code; one count of indecent assault under Section 156 of the Criminal Code; and one count of gross indecency under Sections 156 and 157 of the Criminal Code. The Defendant has withdrawn the limitation period defence, but denies liability and damages.

[42]         As noted earlier, at the end of January 1977, Casar Lalo became BMG's probation officer. As such, BMG was required to go to Lalo's office once per week after school. BMG had to take the bus to get there and, on at least one occasion, was late.

[43]         I heard evidence that Lalo shared an office with another probation officer and that there were windows both on the external wall and the internal wall facing a receptionist and other offices. I also heard evidence that the normal working hours at the probation office were 8:30 a.m. to 4:30 p.m. There is also evidence that at 4:30 p.m. most, if not all, staff would have gone home. Another probation officer, George MacDonald, testified that Lalo would sometimes meet clients after hours. I believe therefore that the assaults by Lalo most likely took place after other staff had departed. It is very unlikely that Lalo would have risked detection while others were still in the building. As far as BMG is concerned, he acknowledged that he is sometimes confused about the details of the individual meetings except the last one. He met with Lalo at his office on five different occasions.

[44]         At the first meeting, nothing unusual occurred. BMG says that Lalo read him the Riot Act and asked how things were at home and at school. It was then that he was told by Lalo that their meetings were to be weekly.

[45]         BMG says the second meeting occurred between 3:30 and 4:30 p.m. Lalo brought him into the office and told him to lay on the floor. Lalo began rubbing BMG’s chest and crotch through BMG's clothing. BMG says Lalo asked him what he thought of it. BMG was very concerned and no doubt confused and frightened.

[46]         BMG believes that it was after the second meeting that he went to his father's bedroom and told his father that Lalo was a bad person. He says he would not have mentioned anything sexual because sex was a taboo subject in the household. I am satisfied that BMG's father had no idea that Lalo was sexually assaulting his son. I am further satisfied that, given the state of the father/son relationship, BMG’s complaint would have been summarily dismissed.

[47]         The third meeting is one where BMG says he may have been late. He says that Lalo pulled BMG's trousers down, started rubbing his crotch and “started performing oral sex on me”. BMG says he did not stop it. He did not know how he could and felt that, “if Lalo was happy, everything is good for me”. He says he was very embarrassed by what had occurred. Significantly, he says that the office door was closed and that “I never saw anyone else around”.

[48]         At the fourth meeting, BMG says that he had refused Lalo's request that BMG perform oral sex on him. He recalls that at one meeting Lalo was very mad at him and he believes it was this fourth meeting.

[49]         BMG described his thought process at the time. He said that he was confused, he did not know what he was going to do. He was embarrassed and did not know how to deal with the assaults. BMG says that he had previously lied to his parents about other matters and that he felt that no one would believe him. He says at that point his father did not believe anything he had to say.

[50]         During the fifth and final meeting with Lalo, BMG says it was dark or close to it. BMG says Lalo had him on the floor again but this time Lalo was masturbating at the same time. He says that Lalo had a tube and was rubbing the contents between BMG’s buttocks. Lalo then put his penis between BMG's buttocks and penetrated him. BMG says Lalo pulled BMG's pants back up and asked BMG whether it was good for him. Lalo then drove him home.

[51]         What happened when BMG got home illustrates the impossible predicament in which he found himself. He went to the basement and took off his underwear which were soiled with fecal matter and sperm and blood. It was at that point that his stepmother J caught him washing the underwear and accused him of defecating in them. She made him continue cleaning the underwear and refused to let him out of the basement until it was done to her satisfaction. BMG says it was four to five hours before he was allowed to go upstairs.

[52]         To add to his confusion and undoubted psychological trauma, BMG came home one evening to discover that Lalo had been invited to have supper with the family. This occurred after one of the meetings where BMG had been sexually abused by Lalo. In her evidence, S, BMG's sister confirmed that Lalo had in fact come to their home on a couple of occasions, including once for dinner. At the time of these assaults, BMG would have been just shy of his 14th birthday.

[53]         The Shelburne Sexual Assault:  BMG testified that during his first stay at Shelburne, he decided to run away. His freedom was short lived as he was soon picked up by the police and returned to the Shelburne facility. Rather than being returned to the communal bedroom, he was locked for several days in a small cell. He described it as a small cinder block room with one small window and a solid door. There was a solid slab to sleep on and a metal toilet attached to the wall.

[54]         While he was in that cell, BMG says that one of the staff came in one night and sat down. He says the person said that he had heard that BMG liked men. “He raped me there on the spot.” BMG says the staff person pulled down BMG's underwear and anally penetrated him. BMG said that he had seen this person around and thought that he was a counsellor. He did not know the person's name and thought it might be Karl. He described the person as having a thin face, chiselled look, thin nose, hair shiny and slicked back. He said the person was approximately 5' 8" in height. BMG testified that at the time of the rape, he had not been fed for several days, that he was hungry and very cold. He also says that he never told anyone because of the embarrassment.

[55]         In a statement given to the RCMP on February 19, 1997, BMG said this about the alleged Shelburne assailant:

“I don't know his name but I can describe him to a ‘T’. (Crying) Just this short, stocky, big guy ... I was just a ... skinny little kid and ... I had no control and no choice and no nothing.”

[56]         During cross-examination, BMG was confronted with discovery evidence he had given with respect to the Shelburne individual. There, BMG, gave possible names for his assailant as Aubrey, or Karl, or Vincent or Vince.

[57]         In the preparation of this lawsuit, BMG underwent an independent psychological assessment by Psychologist, Dr. Charles Hayes. (I shall refer to Dr. Hayes' evidence in more detail later.) Apparently Dr. Hayes prepared a history based upon his interview with BMG and submitted that history to BMG to review. In a letter dated May 21, 2004, Dr. Hayes noted the following: “(BMG) was asked to review the history and he corrected my version to read: ‘raped two times in cells by the same staff worker’.” When confronted with this inconsistency on cross- examination, BMG stated that the Shelburne sexual assault “only happened once, I can't imagine telling him twice”.

[58]         In short, the evidence related to the alleged sexual assault in Shelburne is far from satisfactory. Obviously, BMG has given inconsistent evidence with respect to the description of his alleged assailant. The information provided to Dr. Hayes is also troubling. I am inclined to believe BMG that Dr. Hayes is mistaken but I cannot firmly conclude that such is the case. As the Plaintiff, BMG bears the burden of proof. Given the state of the evidence, I cannot conclude on a balance of probabilities that the Shelburne sexual assault in fact occurred.

[59]         Credibility of BMG:  I found BMG to be a credible witness. When assessing his credibility, it is crucial to separate the pre- and post-disclosure segments of his life. Prior to 1997, BMG used several aliases. Between 1986 and 1997, he exclusively used the name D.B. He has since had his name officially changed to D.B. The point is that, prior to the 1997 disclosure, BMG was living a lie. He readily acknowledges that. Various examples are available to demonstrate that he lied to doctors and others, including his common-law wife, about his educational attainment and his work history. Why he did so probably requires expert psychiatric evidence to explain. My impression is that BMG was trying to present the persona he thought was rightfully his. As noted, he was also compensating for feelings of inadequacy. He is obviously a very intelligent person who felt the need to be perceived by others as able and well educated.

[60]         There is no suggestion that S and BMG colluded in the preparation of their evidence. In fact, I am satisfied that each testified from his/her own independent recollection of the events of their childhood. S is obviously a sympathetic witness for her brother, but I have no hesitation in finding that her evidence was straightforward, unembellished and truthful.

[61]         Much of BMG’s evidence pre 1997 is corroborated by others. His sister S corroborates his evidence regarding his family life. The attacks by Lalo are acknowledged by the Defendant. In the face of the Defendant's argument that Lalo was not the main cause of BMG's difficulties, it was not in BMG's interest to exaggerate the extent of the abuse by his family. Yet, BMG provided many graphic details that otherwise would not have been discoverable by the Defendant. (E.g. his father telling him that he was on his own or that he wanted nothing more to do with him when BMG was just 13 years of age.) His evidence for the 1987 to 1997 period is substantially corroborated by DU, herself a very credible and straightforward witness. Employment records from that period also partially corroborate his evidence.

[62]         BMG’s post 1997 evidence is corroborated both by employment records, evidence of his employer B F, and also by Ms. U. In short, I believe D.B. did his best to give accurate and comprehensive evidence.

[63]         What the Defendant knew or should have known in 1977:     The Defendant's position is that it had no knowledge of Lalo's unlawful activity nor any warning that there may have been a problem. I did hear evidence regarding two incidents regarding Lalo, one of which (the 1978 complaint) occurred in 1978 or 1979 (i.e. after the incident with BMG). The other incident occurred between 1973 and 1975 but did not come to the Defendant’s attention until February 1989. There is no evidence to suggest that the Defendant could or should have known about the latter incident earlier. Counsel urges me to infer that the 1978 incident reflects the practice of the day, that is, that the Defendant’s best interests trumped the best interests of the children in its care.

[64]         The 1978 Complaint:  In 1978, John T. (Jock) MacKinnon was Lalo's casework supervisor. MacKinnon had received a complaint that Lalo had taken a young person to the KOC hall on the Bedford Highway and touched him inappropriately. Specifically, the boy's mother had complained that Lalo had touched the boy's penis through his clothing. MacKinnon and his boss, Jack Walter Jackson, supervisor of Family Court, undertook an investigation of the matter. They questioned the boy's mother and then interviewed Lalo who admitted to them that he had taken the boy to the KOC hall. According to Lalo, the boy was having breathing difficulties and Lalo touched the boy's waist. Lalo insisted that he merely pointed to, but did not touch, the boy's penis (while inquiring about the source of the boy's difficulties).

[65]         MacKinnon and Jackson believed Lalo over the boy and left it to the mother to involve the police if she wanted to do so. MacKinnon says the mother's main concern was that it not happen again. According to Jackson, the boy was  transferred to another probation officer. Jock MacKinnon said a written report of the incident was prepared by Jackson and relayed to one Joan MacKinnon, then the Regional Administrator of the Department of Social Services. No report has ever been produced.

[66]         I should note that neither Jock MacKinnon nor Jack Jackson testified in person. Because of health concerns their respective discovery evidence was admitted at trial. It is obvious from reading the transcripts that MacKinnon has the clearer recollection and is certainly the more forthcoming of the two. Plaintiff's Counsel strongly urged me to draw a negative inference against the Defendant both because of the absence of the report and the failure to call Joan MacKinnon as a witness.

[67]         I am satisfied that there never was a written report. Jackson’s evidence is unreliable. He denied any knowledge of complaints about Lalo until he was confronted with a prior statement he had given to police. He acknowledges that in the statement he said he had given a verbal report to Joan MacKinnon. Jock MacKinnon believed there had been a written report. On re-direct (p. 197), however, Jock MacKinnon stated:

“Q. But do you recall signing a report?

 

A. My impression was that there was a report, and if there were, I would have signed it. Because I know Jack was military. Jack was that type of precision that it wouldn’t have been just —

 

Q. Okay. But do you actually have an actual recollection of signing it?

 

A. My hesitation is that I believe that I did, but, again, I’m very affected by the fact Jack said that he didn’t even do one. You know, I’m having a hard time reconciling that.”

[68]         It is obvious from the above, that Jock MacKinnon’s belief in a written report is a reconstruction and not a recollection. I doubt that Jackson even gave a verbal report of the matter to Joan MacKinnon. It would have been better to hear from Joan MacKinnon though I doubt that she would have remembered a verbal report almost thirty years later. In light of the foregoing, I am not prepared to draw the adverse inference urged by the Plaintiff.

[69]         Jock MacKinnon says that as an employer he would have assessed Lalo's interests in light of the Collective Agreement. For example, he says at page 181:

“A..... but I had at least had worked through it enough in my

mind to know that, ‘okay, what are my options as the employer? Can I initiate some progressive level of discipline?’ Could we have fired him? Could we - and the answer is no.

 

Q.   Why do you say that?

 

A. Oh simply because of the Collective Agreement, the progressive discipline thing. There had been no previous history. The facts of the case were still a matter of interpretation. And where are you going to put the emphasis when you get down to those things?”

[70]     Plaintiff's Counsel pointed out that there was no record of this complaint on Lalo's personnel file nor on his performance evaluations.

[71]         I share Counsel's concern about the manner in which this complaint was handled. However, I cannot infer from this one post 1977 incident that this was “the practice of the day”. I cannot therefore infer that the Province's course of action would have put a priority on keeping every such matter (including BMG’s) quiet rather than taking action in the best interests of the children. Nor does it shed any light on the adequacy of Lalo's supervision. Of necessity, probation officers have to meet on a one-on-one basis with the youths in their care. The only supervision which would have prevented the event in question would have been one-on-one full-time supervision which was obviously not realistic.

[72]         The 1989 Report: The incident which was reported in 1989 occurred between 1973 and 1975. At that time, Lalo would have been employed in Child Welfare in Dartmouth. The youth involved would have been between the ages of 13 years and 15 years. As noted, there is no evidence that the Defendant could or should have known about these incidents prior to the disclosure in 1989. Nor is there any evidence, such as there was with the 1978 complaint, regarding the involvement of any senior officials in the department. Clearly, therefore the 1989 complaint has no probative value.

[73]         Evidence of J.G.:  Mr. G. is a 44 year-old individual with a lengthy criminal record. In 1976, when he was 14 years old, he was on probation. His probation officer was Cesar Lalo. Mr. G. described an incident which he says occurred in Lalo's office. He says Lalo moved his chair around the desk close to the chair on which G. was seated. G. says Lalo rubbed his leg and asked him if he had ever had sex with a man. G. says at that point he lost his temper and pushed the desk toward Lalo.

[74]         The commotion attracted the attention of another probation officer, George MacDonald, and an on-duty police constable. Both rushed into Lalo's office, and according to G., heard him call Lalo a “fucking fruit”. G. says that he told George MacDonald what had occurred. He testified further that, after the incident, he was transferred to George MacDonald's caseload. He says he had no further contact with Lalo.

[75]         The problem with J.G.'s evidence is credibility. Mr. G. is a life-long criminal with convictions for break and enter, assault and attempted murder. He is currently serving time in a federal institution. The main reason I cannot accept G.’s evidence is that probation officer George MacDonald, testified that he did not recall the incident. Mr. MacDonald had earlier testified that he was suspicious about Lalo and had in fact advised his casework supervisor, Mr. McCarron, about rumours which were circulating about Lalo (none of these had anything to do with G.). MacDonald further testified that he was so concerned about Lalo that he watched him for a period of time but, when he noticed nothing unusual about Lalo's conduct, “I had no worries after that”.

[76]          It seems to me that if the incident had occurred as G. described it, Mr. MacDonald would have recalled it. Further MacDonald, the man who thought he should bring rumours to his supervisor's attention, would surely have reported the G. incident to his casework supervisor, Mr. McCarron. For his part, Mr. McCarron testified that he had no recall of any incident regarding J.G.. He also denied having been told of rumours by George MacDonald.

[77]         In light of the foregoing, I am satisfied that the incident respecting J.G. did not occur.

[78]         The Rumours About Lalo:  In 1975, Cesar Lalo was transferred from his job in child protection with the Department of Welfare in Dartmouth. His new job was as probation officer with the Family Court in Halifax. There, Lalo worked with a number of other probation officers, including George MacDonald and Patrick LaChance. Clearly, Lalo's transfer was the subject of some curiosity among his fellow workers.

[79]         George MacDonald testified that Lalo “walked in out of the blue” having been transferred from Dartmouth where he had been a child protection worker, not a probation officer. MacDonald testified that there were rumours, in particular that Lalo had been transferred because he had been “messing around with kids”. As I noted earlier, MacDonald was so concerned about these rumours that he reported same to his casework supervisor. As I also noted above, MacDonald took it upon himself to spy on Lalo for a number of weeks but satisfied himself that there was nothing untoward about Lalo's conduct.

[80]         I allowed the rumour evidence in over the objection of the Defendant. The rumours were allowed into evidence not as proof of their content but merely to establish the fact that the rumours were present. It seems to me that if rumours existed about a probation officer, they could not be ignored. After all, the position of probation officer is a sensitive one involving significant control over a vulnerable clientele. If rumours came to a supervisor's attention, then one would expect the supervisor to satisfy him/herself that there was no factual basis to the rumours. Indeed, one might expect a probation officer's colleagues to bring any rumours of suspicious activity to the attention of the appropriate supervisor.

[81]         George MacDonald attributed the rumour that Lalo had been transferred because he had been “messing around with kids” to Patrick LaChance. Patrick LaChance testified that he had never heard about why Lalo had been transferred to Halifax. Overall, I was more impressed with the evidence of LaChance than I was with that of MacDonald. In fairness, both were trying to recall events and conversations which occurred more than 30 years ago. But I am skeptical about MacDonald's recollection in view of the fact that LaChance has no recall of the specific rumour involved. Nor does the casework supervisor, Bill McCarron, have any recollection of the rumour being reported to him by MacDonald. I found McCarron's evidence to be believable and that his lack of recollection was not simply self-serving forgetfulness.

[82]         George MacDonald testified that he once got a complaint from one AL whose daughter had been committed to the School for Girls in Truro. Her concern was that Lalo was taking her 9 year-old son for drives in his vehicle. MacDonald says that he made an appointment for Mrs. L to meet with his supervisor, Jack Jackson, and that he related Mrs. L’s complaint to Jackson. The complaint did not proceed because Mrs. L called MacDonald the next day and told him to forget it, that she must have been having a bad day. She went on to say that Lalo was a good guy who sang in the choir with her.

[83]         Initially MacDonald testified that the Leonard complaint would have been made in the 1976 to 1978 period. However, on cross-examination, he acknowledged that he must have gotten the call in 1983 or later. The L complaint therefore came to the Department’s attention at least six years after the Lalo assaults on the Plaintiff.

[84]         Patrick LaChance had known Lalo since 1971. They both worked together in child protection in Dartmouth between 1971 and 1973. LaChance had a negative impression of Lalo and found him to be loud and aggressive. He said that Lalo constantly told off-coloured jokes and that he would grab and pinch people on the butt.

[85]          In 1975, LaChance and Lalo were both probation officers in Halifax. LaChance continued to have concerns about the appropriateness of Lalo's behaviour. He described how Lalo would touch young people in a manner that LaChance would not. He said Lalo would put his arm around a youth's shoulder but that such action would appear to be innocent and would not be anything serious enough to report or talk to him about. He described how Lalo would clown around with the young persons, putting them in a headlock or embracing them in a bear hug. LaChance says that he and others, including MacDonald, thought Lalo might be homosexual but there was no indication that he might be a pedofile.

[86]         In cross-examination, LaChance said there was nothing Lalo did which caused him concern that Lalo might be abusing children. I am satisfied that that sums up the situation as it existed at the time. Lalo was perceived as being loud and effeminate and his behaviour sometimes embarrassing. But there was nothing to indicate that he might be abusing the young people in his care.

[87]         Joseph A. MacKinnon:  From 1975 until 1994 Mr. Joseph MacKinnon was the Director of Field Services for the Department of Community Services. Mr. MacKinnon testified that he first became aware of Lalo's improper conduct in 1989 after a call from Cal Bungay, the supervisor for the Halifax/Dartmouth Family Court. Mr. MacKinnon had no prior knowledge of any rumours of inappropriate conduct by Lalo. In particular, as far as MacKinnon was concerned, the reason for Lalo's transfer from Dartmouth to Halifax was routine. Mr. MacKinnon recalled that at the time there had been a new district office opened in Sackville which required the Department to redeploy staff throughout the region. He assumed that Lalo's transfer was part and parcel of this redeployment.

[88]         Mr. Joseph MacKinnon was extensively cross-examined on the details surrounding the hiring of Lalo. The questions were obviously designed to show that Lalo was not qualified to be a probation officer and that his hiring was political. He was also cross-examined respecting the amount of supervision and performance evaluation to which Lalo was subject. MacKinnon was also directed to the fact that the 1978 KOC incident never appeared in any of Lalo's subsequent performance evaluations.

[89]         I have carefully considered all of this evidence. I am satisfied that there is nothing in it which would have alerted Lalo's supervisors or colleagues to the fact that he was a pedofile. One has to keep in mind that sexual abuse generally (and particularly sexual abuse by persons in authority) was not on the public radar in the 1970's. The reasonableness of the conduct of the supervisors must be examined in that context. In my view, more stringent performance evaluations would have made no difference as far as Lalo is concerned. Lalo was obviously very adept at keeping his abhorrent behaviour secret.

[90]         The Hayes Report:   In September, 2003, Dr. Charles Hayes did a psychological assessment of BMG for the purposes of this lawsuit. Dr. Hayes has been working as a clinical psychologist since 1968 and received his PhD in that field in 1975. He has dealt with sexual abuse victims on several occasions during his career. He also has extensive experience dealing generally with the diagnosis and causation of post traumatic stress disorder (PTSD). He has been previously qualified to give expert opinion evidence in court on approximately 20 occasions though only 1 or 2 of those dealt with sexual abuse. Over the objection of the Defendant, I permitted Dr. Hayes to give expert opinion evidence on the diagnosis and causation of PTSD.

[91]         The Defendant’s primary objection to Dr. Hayes’ report was that it was not based upon sufficient facts or data. In his pretrial brief, Counsel listed the following documents which he says should have been provided to Dr. Hayes:

•        Shelburne Regional Vocational School records (1977-78)

•        Medicine Hat & District Hospital (Sept 27-Oct 5, 1982)

•        BMG’s statement to RCMP (February 19, 1997)

•        BMG’s Recreational Pilot’s License and Medical Declaration

(May 26, 1997)

•        BMG’s testimony transcript at Lalo’s criminal trial (March 6, 2003)

•        Cst. Fox testimony transcript at Lalo’s criminal trial (March 10, 2003)

•        Sgt. Gilroy testimony transcript at Lalo’s criminal trial (March 10, 2003)

•        S testimony transcript at Lalo’s criminal trial (March 11, 2003)

•        J testimony transcript at Lalo’s criminal trial (May 5, 2003) School records (Dr. Hayes was provided one page from RothesayCollegiate)

•        Medical, psychological, employment, business and income documents (including S.S.Marie Plummer Hospital records, 1981; Clarke Institute records, 1981 and 1982 (BMG says he was there for 6 weeks, only October 16, 1981 record provided); psychologist’s records from age 12 (Dr. Hayes was provided some of the psychiatric hospital records regarding the period: May 1981- March 83)

[92]         In addition to the absence of the above records, the Defendant argued that BMG gave Dr. Hayes an innocuous account of his home life prior to 1977. Indeed, Counsel argued that BMG made a calculated attempt to mislead Dr. Hayes.

[93]         I do not accept the Defendant’s submission. It is true that Dr. Hayes did not get a full account of BMG’s home life prior to writing his report. I will deal with that deficiency later. I do not accept, however, that the history BMG gave to Dr. Hayes was calculated to deceive. BMG’s perception was that Dr. Hayes was hired to assess the impact of the Lalo assaults. Accordingly, BMG focussed on the Lalo assaults.

[94]         Further, I am satisfied that some of the documents listed by the Defendant are either not available (e.g. the psychologist’s records from age 12) or are irrelevant (e.g. police testimony from Lalo’s criminal trial). I am satisfied that Dr. Hayes had enough information, along with the well recognized tests he administered, to enable him to render his professional opinion. To the extent that the information was misleading or incomplete, the issue is weight and not admissibility.

[95]          Dr. Hayes met with BMG for a full day on September 2, 2003. Subsequently he prepared a 15 page report dated December 9, 2003. On page 15, Dr. Hayes notes his diagnostic impression of BMG as suffering from “Post traumatic stress disorder in partial remission. Chronic.” He states under Axis V: “Current. Good ability to function. Some alienation.” In cross examination, Dr. Hayes explained that “in partial remission” means that in 2003, all the symptoms of PTSD were no longer present.

[96]         In the course of his assessment, Dr. Hayes had BMG complete three tests.

 

(1)   the Symptom Checklist-90-Revised (SCL-90-R). This test consists of 90 common mental health symptoms. BMG was asked to rate each symptom as to how much each caused him distress over the seven-day period ending September 2, 2003. By this test Dr. Hayes concluded that BMG felt as or more distressed than 70 percent of men his age. However, his level of distress was mild and his score on intensity of distress was roughly average in comparison to other men. The overall impression from the SCL-90-R was that he was moderately distressed. (Emphasis added)

 

Common themes in endorsed items revealed that he attributed blame to others for most of his troubles, was generally fearful and felt so restless that he could not sit still. He had clinically significant scores on several scales suggesting that he was anxious, interpersonally sensitive, distrustful of others, and felt unable to get close in feelings to others.

 

(2)   Trauma Symptom Inventory (TSI). The TSI is a 100 item inventory of symptoms commonly associated with extreme trauma. It yields measures of post traumatic stress and other psychological sequelae of significant traumatic events. It is intended for use in the evaluation of both acute and chronic traumatic symptomology.

 

His profile on the TSI is a classic post traumatic presentation in that he was reporting both intrusive and avoidant components of post traumatic stress disorder (PTSD). His scores reflect relatively chronic symptoms that have become more or less integrated in his personality. These symptoms are aversive to him and have the potential to result in serious psychological disability. (Emphasis added)

 

(3)   The Minnesota Multiphasic Personality Inventory - Revised (MMPI-II): This is a commonly used psychometric tool that aids in the detection and evaluation of common psychiatric complaints and illnesses. It is a useful source of hypotheses about respondents.

 

The MMPI-II contains measures of validity and of clinical signs. He reported a number of extreme symptoms on one of the validity scales suggesting the possibility that he was experiencing considerable distress that he felt needed to be expressed. An alternate interpretation was that he was

over-reporting problems since he indicated symptoms that were infrequently endorsed in the standardization sample. Thus, he could have been exaggerating his symptoms because of adopting a highly self-critical point of view. This latter interpretation was ruled out by examining in detail his individual scores on all MMPI-II validity scales. Thus his validity scale profile indicated he was being open and honest in his responses, that he disclosed common faults, and that an accurately reported experiencing severe pathology.

 

His MMPI-II clinical profile suggested that his profile will likely remain stable over time. The MMPI-II supplementary profile supported his assertion of family of origin problems. For example, family problems were frequently on the MMPI-II. His description of his family of origin differs markedly from his description of his marriage home. The discord only reflects his family of origin. His responses indicated that he saw his family of origin as lacking in love, he resented the demands placed on him by his family, and he feels angry and hostile toward family members primarily because they did not support him.

 

His MMPI-II profile indicated that he is guarded, distrustful and angry. He seems resentful particularly about the fact that he has been robbed of normal teenage experiences. For instance, he reports feeling badly that he never dated, took a girl to the prom, learned to drive his father's car, or experience any of the myriad things that most teens take for granted.

 

He appears to meet and talk with other people with relative ease and is not overly anxious at social gatherings. Yet, he avoids others, preferring the relative isolation of northern communities. (Emphasis added)

[97]         In the Discussion section of his report, Dr. Hayes notes in part the following:

“(BMG) described a particularly troubled teenage period. He felt unloved, unwanted, distrusted, and unprotected. From his own descriptions it is clear that he tried to escape from sexual abuse perpetrated by Mr. Cesar Lalo and by a staff member in the Shelburne Youth Facility. He felt no one would believe him, or listen to him, so he did the one thing he could - he fled. Not once, or twice, but repeatedly.

 

PTSD is the development of characteristic symptoms following exposure to an extremely traumatic event. Rape constitutes such an event. One of the characteristics of rape is the inability of the victim to be able to stop or control the sexual assault. Typically considerable psychological turmoil and fear is generated through rape and this often leads to the development of PTSD.

 

Mr. Lalo not only raped BMG but he also used intimidation and anger to further control the boy. These additional negative emotional features would likely have the effect of heightening BMG's emotional reactions. Not only was he raped but he also feared incurring Mr. Lalo's wrath.

 

Data pertaining to the sexual abuse he experienced as a youth was available currently. His description of events satisfies the current diagnostic criteria for PTSD. He was subject to recurrent sexual abuse at the hands of Mr. Lalo. At the time he felt intense helplessness, fright, and shame. As a result of these experiences, he developed recurrent intrusive recollections of the events, recurrent dreams, and intense psychological distress at exposure to similar cues. For example, when he began telling me his history of events, he had to pause to recover his emotions. He reported that being in an office with a person of authority, such as me, brought back some of the feelings initially experienced approximately 26 years ago. This reaction attests to the powerful negative emotional sequelae associated with the sexual abuse of 1977.

 

He has consistently attempted to avoid thoughts and feelings associated with the traumatic events. In particular he has strenuously attempted to avoid places or people that arouse recollections of the traumatic events. He felt that he just did not fit in. It is likely that he did not feel able to feel emotional attachments to others.

 

The period of life in which he attempted to run away is characterized by intense anger. He developed hypersensitivity to cues and features that could alert him to special dangers. In his own words, ‘I have a sixth sense in being able to tell if someone is a pedofile'.

 

Even today, according to his self-descriptions and the results of the TSI, he continues to experience some of the typical symptoms associated with the experience extreme traumatic stressor. Thus his symptoms are clearly chronic.

 

Finally, there has been a marked disturbance of his life because of these symptoms. His attempt to control better his runaway life resulted in a loss of educational, social, and vocational opportunities. Currently, he has made some adjustments through taking courses, developing new skills, developing a steady common-law relationship, and living in the somewhat remote town of xxxxx.

 

Yet he remains haunted by his past. He continues to have self-esteem concerns. He has done well in terms of his limited formal educational attainment. There is no question that his speech and vocabulary are far superior to that typical of most people having a grade VII standing.

 

The current assessment noted the presence of symptoms consistent with exposure to an extreme traumatic stressor. Family discord and alienation would not produce such symptoms. Therefore his current symptom picture is clearly the result of being sexually abused.

 

BMG reports not being sexually abused not only by Mr. Cesar Lalo but also by a member of staff at the Shelburne Youth Facility. Sexual abuse from both would contribute to his present psychological picture. However, the abuse he experienced from the hands of Mr. Lalo would be sufficient in itself to result in the symptoms picture seen on this assessment.” (Emphasis added)

 

[98]         As noted, one difficulty with Dr. Hayes' evidence is that he did not have a full appreciation of the extent of the abuse suffered by BMG prior to the Lalo incidents. I do not think that BMG set out to deceive Dr. Hayes but clearly BMG's focus was the preparation of this lawsuit and therefore the events involving Lalo. Thus he emphasized the events involving Lalo. The relevant background section of Dr. Hayes' report do contain references to the discipline by the stepmother and the father. But obviously, Dr. Hayes would not have had the same opportunity or time to receive as a full an account as I did when I heard BMG examined and

cross-examined by Counsel.

[99]         Quite aside from preparation for the lawsuit, BMG would naturally emphasize what had to have been by far the most traumatic experiences of his young life. While BMG's experiences in the home can fairly be described as traumatic, they pale by comparison to being anally raped by a person such as Mr. Lalo. It would appear that Dr. Hayes was unaware that BMG had run away from home several times before the Lalo incident. He also appears to have been unaware that BMG's father had reportedly threatened to kill him on one occasion or that the father was involved in holding BMG on the occasion when J beat him on the genitals. Dr. Hayes appears not to have been aware that the sister S was also beaten at home and that BMG was aware of that. Nor was he aware that BMG's schooling had been severely compromised prior to the events with Lalo. He was also unaware that BMG had seen a psychologist at age 12.

[100]    Despite the deficiencies in Dr. Hayes report and his evidence, I am satisfied that his diagnosis of "post traumatic stress disorder in partial remission. Chronic" is correct. I am also satisfied that the triggering event of the PTSD were the assaults by Lalo. I do not accept, however, that all of BMG's troubles resulted from the Lalo assaults. It is very problematic to assess what, for example, BMG's educational attainment would have been but for the Lalo assaults. I will discuss that issue in more detail later when I deal with causation and damages.

[101]    Is the Defendant directly negligent for the sexual assaults committed on BMG on Lalo? The short answer is no. The Plaintiff made its claim in negligence on the basis that the Defendant had breached its duty of care to BMG. Specifically, the Plaintiff argued that the Defendant knew or ought to have known that Lalo was abusing children on his caseload, prior to the assaults on BMG. The evidence, however, is clear that the Defendant did not know prior to 1977 that Lalo was abusing children. As I have demonstrated above, the subject of the complaints either occurred after 1977 or did not come to the Defendant’s attention until 1989. As far as Lalo’s colleagues and supervisors were concerned prior to 1977, Lalo was doing a good job. His performance evaluations reflect that fact. The only way the Defendant could have prevented the abuse would have been to insist that probation officers were not to meet with children alone. That was not then, and is probably not now, a practical solution.

[102]    The Plaintiff also submitted that Lalo was a political appointment who was not properly screened or qualified for the position. In light of the evidence I heard, that is at best a speculative submission. As Joseph MacKinnon testified, the qualifications at the time for probation officers were Grade XII and six years related experience or a Bachelor of Arts degree. Lalo met those criteria. In any event, there is no evidence that higher qualifications or a more stringent screening process would have prevented Lalo from becoming a probation officer. There is no evidence that there was any hint in his past of inappropriate conduct which would have disqualified Lalo for the position. There is no evidence that Lalo’s hiring was unusual in light of the standards of the day.

[103]    The Plaintiff also urged me to find that Lalo was transferred to the Halifax Family Court in 1975 because he had been involved in inappropriate conduct with one or more of the wards on his caseload in Dartmouth. There is no evidence that such was the case. Counsel argued that document disclosure from the Defendant offers no explanation for Lalo’s transfer. He argued that a transfer in the ordinary course would be documented.

[104]    In addition, Counsel argued there was no documented evaluation of Lalo from his district supervisor for the period starting in July 1974 to the date he is transferred in Halifax, May 12, 1975. Counsel says the lack of documentation, Lalo’s transfer and the missing evaluation is highly suspicious and that an adverse inference ought to be drawn from the lack of documentation. Inferences, negative or otherwise, cannot be drawn from mere suspicion. To hold otherwise would be to equate inferring with speculating. There is simply no evidence to support an adverse inference in this instance.

[105]    In short, there is no evidence from which one might infer that the Defendant could have reasonably foreseen that Lalo would abuse the children on his caseload. I am satisfied that the claim of negligence is not supported by the evidence.

[106]    Whether the Province knew or ought to have known about the 1977 assaults must be judged by the standards applicable at the time of the acts - in 1977.

[107]    The issue was considered in a recent Supreme Court of Canada decision in Blackwater v. Plint, 2005 SCC 58 at paras. 11-17. The Supreme Court noted that the trial judge concluded that the harm was not foreseeable. There was no evidence that the possibility of sexual assault was actually brought to the attention of the people in charge of AIRS. At para. 14, the Court noted the trial judge’s finding that “the children had not been very clear in reporting the abuse and the adults to whom they reported did not realize the children were talking about sexual abuse, an almost unthinkable idea at the time” [1940's to 1960's]. At para. 15, the Court concluded:

“Nor, given the standards and awareness of the time, could it be contended that they ought to have known of the risks; as the trial judge stated, ‘...when the evidence is examined closely, one is drawn to the conclusion that the unspeakable acts which were perpetrated on these young children were just that: at that time they were for the most part not spoken off’ (2001 decision, para 135). By contemporary standards, the measures taken were clearly inadequate and the environment unsafe. But by the standards of the time, constructive knowledge of a foreseeable risk of sexual assault to the children was not established.”

 

[108] In M.(M.) v. F.(R) (1997), 52 B.C.L.R. (3d) 127 (C.A.) at para. 110, the Court of Appeal cited Professor Fleming in The Law of Torts, published in 1989, where at pp. 397-8 the authors say that:

 

“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 the fact.”

 

[109] The same principle was recognized by McEachern C.J.B.C., in C.A. v.

 

Critchley, [1998] B.C.J. No. 2587 (C.A.) at para. 89:

 

“these [provincial government] officials could not be found negligent in the absence of notice of facts or circumstances requiring their attention”.

[110] Similarly, in Doe v. O’Dell, [2003] O.J. No. 1 3546 (Q.L.), the Ontario Superior Court of Justice, at para. 189, found that

“[L]iability for negligence requires fault..... The courts have

held that the party is not liable in negligence unless he or she had actual knowledge of the wrongdoing or ought to have appreciated the risk of the wrongdoing and made inquires or taken other action.”

[111] Acts of sexual abuse by employees must be judged by the standards of the day for placement and supervision. As noted in a number of cases cited above, the knowledge and awareness of possibility of sexual abuse was not on the horizon in 1970s. The sexual assaults upon BMG in 1977 were kept a secret by Lalo and BMG. There is no evidence that the Province was aware of sexual misconduct by Lalo at the time of the assaults 1977, or beforehand. The Province did not breach any duty of care as contemplated in 1977.

[112] Did the Province owe a fiduciary duty to BMG and, if so, was the duty breached?   Under the Children Services Act, 1976, SNS c.8, the Province of Nova Scotia owed a duty of care to children under its care. Section 76 of the Children Services Act provided:

 

       “76      In an action taken under this Act the court shall apply the principle that the welfare of the child is the paramount consideration.” (Emphasis added)

 

[113] In K.L.B. et al v. British Columbia, 2003 SCC 51, the court was examining the duty of care owed by the Province of British Columbia to children in foster homes. The same principles arguably apply to children under the care and direction of a probation officer. At paragraph 48, Justice McLachlin stated the following:

“What then is the content of the parental fiduciary duty? This question returns us to the cases and the wrong at the heart of breaches of this duty. The traditional focus of breach of fiduciary duty is breach of trust, with the attendant emphasis on disloyalty and promotion of one's own or others' interests at the expense of the beneficiary's interests. Parents stand in a relationship of trust and owe fiduciary duties to their children. But the unique focus of the parental fiduciary duty, as distinguished from other duties imposed on them by the law, is breach of trust. Different legal and equitable duties may arise from the same relationship and circumstances. Equity does not duplicate the common law causes of action, but supplements them. Where the conduct evinces breach of trust, it may extend liability, but only on that basis. As I wrote in Norberg v. Wynrib, [1992] 2 S.C.R. 226: ‘In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with their own self-interest...The essence of a fiduciary relationship, by contrast, is that one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other’” (p.230) (Emphasis added).

 

[114] At Paragraph 49, Her Ladyship stated:

 

“I have said that concern for the best interests of the child informs the parental fiduciary relationship, as La Forest J. noted in M.(K) v. M(H), supra, at p. 65. But the duty imposed is to act loyally, and not to put one's own or others' interests ahead of the child's in a manner that abuses the child's trust. This explains the cases referred to above. The parent who exercises undue influence over the child in economic matters for his own gain has put his own interests ahead of the child's, in a manner that abuses the child's trust in him. The same may be said of the parent who uses a child for his sexual gratification or a parent who, wanting to avoid trouble her herself and her household, turns a blind eye to the abuse of a child by her spouse. The parent need not, as the Court of Appeal suggested in the case at bar, be consciously motivated by a desire for profit or personal advantage; nor does it have to be her own interests, rather than those of a third party, that she puts ahead of the child's. It is rather a question of disloyalty - - of putting someone's interests ahead of the child's in a manner that abuses the child's trust. Negligence, even aggravated negligence, will not ground parental fiduciary liability unless it is associated with breach of trust in this sense.” (Emphasis added)

 

[115] The Plaintiff argues that the loyalty of the Department of Social Services was not to the children, but to the Deputy Minister, Minister and Government. There was, according to the Plaintiff, an attitude of indifference to the children under the care of the Department. He says that no clearer example of the attitude of the day could be found then the 1978 incident when the young boy’s mother complained that Lalo had touched the boy’s penis at the Knights of Columbus Hall. The reaction from the senior personnel in the Department of Social Services was to believe Lalo over the boy, even when that explanation was clearly not believable. Instead of loyalty resting with the children, it was placed elsewhere to Mr. Lalo, the supervisors, the Deputy Minister, Minister and the entire Government. There was a mentality that problem issues should be resolved quietly and getting the Complainant’s mother to back down from laying the charge was the goal. The goal, the argument goes, was to “keep a lid” on any situation that could embarrass the Minister.

[116] As I have noted previously, the problem with this argument is that it is based almost entirely on one incident which occurred subsequent to the Lalo assaults on the Plaintiff. I am unable to draw the inference that the 1978 incident demonstrated the mind-set of the day and therefore that the fiduciary duty the Defendant owed the Plaintiff must similarly have been breached. Simply put, there is no evidence that the Defendant had any inkling of what Lalo was up to prior to the 1978 incident. In short, while I am satisfied that the Defendant owed a fiduciary duty to the Plaintiff, I am unable to find that there was a breach of that duty.

[117] Is the Defendant vicariously liable for the sexual assaults committed on the Plaintiff by Lalo? In Bazley v. Curry, [1999] 2 S.C.R. 534, the court laid out the test for vicarious liability in cases of sexual assault.

[118] The starting point in the analysis was the Salmond test which says that an employer is vicariously liable for actions of employees if the actions are authorized by the employer, or if the actions are unauthorized but so connected to authorized acts as to be considered an improper mode of doing an authorized act.

[119] Justice McLachlin, writing for the court, focussed on the second branch of the Salmond test. Her Ladyship stated at paragraph 15:

“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.”

 

[120] Her Ladyship then considered the broader policy rationales commencing at paragraph 41:

“Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive, 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 obstructing 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. (Emphasis added)

 

(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); -- (This factor has no application to the BMG analysis.)

 

(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.”

 

[121] Her Ladyship continued at paragraph 42:

“Applying these general considerations to sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks...” (Emphasis added)

 

[122] Her Ladyship continued at paragraph 43:

 

“The risk of harm may also be enhanced by the nature of the relationship the employment establishes between the employeeand the child. Employment that puts the employee in a position of intimacy and power over the child (i.e., a parent-like,

role-model relationship) may enhance the risk of the employee feeling that he or she is able to take advantage of the child and the child submitting without effective complaint. The more the employer encourages the employee to stand in a position of respect and suggests that the child should emulate and obey the employee, the more the risk may be enhanced. In other words, the more an enterprise requires the exercise of power or authority for its successful operation, the more materially likely it is that an abuse of that power relationship can be fairly ascribed to the employer.

 

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 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 andtrust that pervade cases such as child abuse, special attention should be paid to the existence of a power of dependency relationship, which on its own often creates a considerable risk of wrongdoing.” (Emphasis added)

 

[123] Discussion: I am satisfied that there are no precedents which unambiguously determine on which side of the line between vicarious liability and no liability this case falls. Later I shall look at some other cases. At this stage, I will analyze the evidence in light of the Bazley criteria.

[124] Stage One: Are the sexual assaults sufficiently related to the conduct authorized by the Defendant to justify the imposition of vicarious liability? As Chief Justice McLaughlin noted:

“Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrue’s therefrom, even if unrelated to the employer’s desires............................... Once engaged in a particular

business, it is fair that an employer be made to pay the generally foreseeable costs of the business....” (Emphasis added) (see above at 115)

[125] In determining the sufficiency of the connection I must examine the Chief Justice’s list of relevant factors in the context of the evidence in this case.

[126] (A) The opportunity the operation of a probation service afforded the probation officer to abuse his or her power: Here I note that, of necessity, a probation officer would meet one on one, usually in private, with the young person who was subject to a probation order. It is true that most of these meetings occurred during regular business hours in a fully staffed office. At the time in question, usually two probation officers shared a single office.

[127] The evidence is clear, however, that probation officers enjoyed significant independence and broad discretion in carrying out their responsibilities. That included the discretion to meet alone after hours with the young person. Lalo obviously took advantage of the opportunity this afforded him.

[128] (B) The extent to which the sexual assaults were related to friction, confrontation or intimacy inherent in the operation of a probation service: Probation officers were there in part to ensure that the young person was abiding by the conditions of his/her probation. The potential for friction and confrontation was high. As BMG testified, Lalo read him the Riot Act at their first meeting. It was clear to BMG that he had to tow the line or else.

[129] There was also a rehabilitative aspect to the job. Accordingly, probation officers might discuss the particular stressors which had brought, and might continue to bring, the young person in conflict with the law. Obviously, at times, such discussions might involve intimate details of the young person’s thoughts or experience. This was the context in which the sexual assaults by Lalo occurred. That is, Lalo sexually assaulted BMG during BMG’s mandatory sessions with him. Lalo would have been keenly aware of BMG’s family conflicts. He would know that BMG would not likely complain and, even if he did, would not have the support and sympathy of a sensitive parent. In short, Lalo would know he had an ideal target for his perverted desires.

[130] (C)     The extent of power conferred on Lalo in relation to BMG: Probation officers, particularly at the time in question, exercised tremendous power over the young people on their caseloads. Probation officers made sentence recommendations to the Court. I heard evidence that such recommendations were accepted 90 percent of the time.

[131] In effect, probation officers had the power to decide whether a young person would be committed to an institution. Some may debate that proposition. What is beyond argument is that young probationers would have perceived such power in their probation officers. That was certainly BMG’s perception regarding Lalo. In addition, Lalo had a free hand in determining the time, frequency, duration and location of the meetings with his probationers including BMG.

[132] (D) The vulnerability of BMG to the wrongful exercise of Lalo’s power: Young people on probation would frequently come from troubled backgrounds. BMG fit that profile. He had experienced long-standing physical and mental abuse in his family. He had no where to turn for support when he found himself subject to Lalo’s abuse. In 1977, BMG was a very vulnerable individual vis a vis Lalo.

 

[133] Conclusion: As noted above, Chief Justice McLaughlin stated that:

 

“... the more an enterprise requires the exercise of power or authority for its successful operation, the more materially likely it is that an abuse of that power relationship can be fairly ascribed to the employer.” (117 - 1st quoted paragraph)

[134] Obviously, the exercise of power or authority is inherent in the probation officer’s role. The power imbalance undoubtedly led Lalo to believe that he could take advantage of BMG and that the latter would submit without effective complaint. Lalo was correct. I have no difficulty in concluding that the Defendant’s empowerment of Lalo materially increased the risk of sexual assault and hence the harm. I have no doubt but that the “significant connection” contemplated by Chief Justice McLaughlin exists in this case.

[135] Stage Two: Consideration of Policy:   The second stage under the Bazley analysis requires the Court to consider whether the imposition of vicarious liability on the facts of the case would further the broader policy rationales used to justify it, namely to provide effective compensation and to deter such misconduct in the future.

[136] (a) Effective Compensation: Obviously, the Defendant has the means to provide BMG with effective compensation. Effective compensation must also be fair. It must seem just to place liability for the wrong on the employer (Bazley para 31). Here the Defendant put the probation service in the community. That enterprise carries with it certain risks, specifically that probation officers may abuse their authority and sexually abuse their clients. When that happens, despite the Defendant’s reasonable efforts, the Defendant who created the enterprise, and hence the risk, should bear the loss. It would therefore be fair to require the Defendant to compensate BMG.

[137] (b) Deterrence: Fixing the Defendant with responsibility for a probation officer’s wrongful act will have a deterrent effect. The Defendant will be motivated to augment its organization and supervision. Here, I have concluded that the harm was not foreseeable under negligence law. But, as Chief Justice MacLaughlin noted, “(t)he inquiry is directed not at foreseeability of risks from specific conduct, but at foreseeability of the broad risks incident to a whole enterprise” (Bazley para 39). Here the foreseeable broad risks are that probation officers may take advantage of their position to sexually violate a client. The Defendant must be strongly motivated to prevent such conduct. The imposition of vicarious liability will provide that motivation (see Bazley para 32).

[138] Other Cases: While I have determined that there are no unambiguous precedents, the case at bar shares some striking parallels with John Doe v. Bennett 2004 SCC 17.

[139] There, the Supreme Court found the Roman Catholic Episcopal Corporation of St. George’s vicariously liable for sexual assaults committed by the parish priest. Writing for the Court, Chief Justice McLachlin stated at paragraph 27:

“The relationship between the bishop and a priest in a diocese is not only spiritual, but temporal. The priest takes a vow of obedience to the bishop. The bishop exercises extensive control over the priest, including the power of assignment, the power to remove the priest from his post and the power to discipline him.”

 

[140] Her Ladyship stated at paragraph 28:

 

“... the Bishop provided Bennett with the opportunity to abuse

his power. ”

 

[141] And at paragraph 29:

 

“... Bennett’s wrongful acts were strongly related to the

psychological intimacy inherent in his role as priest. As explained by Cameron J.A., at para. 184: ‘The church encourages psychological intimacy between a priest and the members of the parish. A priest may not have to bath children [as in Bazley] but he, like parents, teaches them right from wrong, he represents God and they are to accept his instructions in spiritual matters.’ This psychological intimacy encourages victims’ submission to abuse and increases the opportunity to abuse, partly by satisfying parents ‘that there children [are] in good hands while in the care and control of their priest’. ”

 

[142] At paragraph 30:

 

“... the Bishop conferred an enormous degree of power on

Bennett relative to his victims. ”

[143] At paragraph 32, Her Ladyship stated:

 

“...The relationship between the diocesan enterprise and Bennett was sufficiently close. The enterprise substantially enhanced the risk which led to the wrongs the

plaintiff-respondents suffered. It provided Bennett with great power in relation to the vulnerable victims and with the opportunity to abuse that power. A strong and direct connection is established between the conduct of the enterprise and the wrongs done to the plaintiff-respondents.”

 

[144] Substitute “Defendant” for “Bishop”; “Lalo” for “Bennett” and “probation officer” for “priest”. The parallels are apparent. Here the relationship between the Defendant’s Supervisors and Lalo are analogous to the relationship between the Bishop and a priest. The supervisors (and the directors and ultimately the Minister) exercise extensive control over the probation officer, including the power of assignment, the power to remove the probation officer from his post and the power to discipline him. Obviously the Defendant provided Lalo with the opportunity to abuse his power.

[145] Lalo’s wrongful acts were strongly related to the psychological intimacyinherent in his role as a probation officer. A probation officer may not have to bath children (as in Bazley) but he, like parents, teaches them right from wrong and they are bound to accept his instructions. The psychological intimacy encourages victim’s submission to abuse and increases the opportunity for abuse, partly by satisfying parents that their children are in good hands while in the care and control of their priest. That is exactly what happened in this case.

[146] I heard evidence from BMG’s sister S that her father expressed confidence in Lalo’s ability to “straighten out” BMG. In short, the Defendant conferred an enormous degree of power on Lalo relative to his victims. The enterprise, the operation of a probation service, substantially enhanced the risk which lead to the wrongs the Plaintiff suffered. It provided Lalo with great power in relation to the vulnerable victims (including BMG) and with the opportunity to abuse that power. A strong and direct connection is established between the conduct of the enterprise and the wrongs done to the Plaintiff.

[147] The Defendant has urged me to adopt the reasoning in Jacobi v. Griffiths [1999] S.C.J. No. 36. In Jacobi, the role of the Boys and Girls Club was to organize recreational activities. Its mandate did not give it the kind of relationship with its clients that attracted liability in Bazley. Here, the employee was not placed in a special position of trust with respect to the children’s care, protection and nurturing. As Binnie J. noted in paragraph 594, “even if one of the plaintiffs described Griffiths as a ‘God-like authority’, that did not reflect the state of affairs which the Club promoted, nor was it foreseeably incidental to the enterprise.” With respect, Jacobi is easily distinguishable from the case at hand. As I have outlined, the probation officers, unlike the employee in Jacobi, were placed in a  special position of trust with respect to the children on their caseload.

[148] The Defendant also urged me to consider H. (S.G.) v. Gorsline 2004 Carswell Alta. 688 (Alta. C.A.). In Gorsline, the Alberta Court of Queen’s Bench declined to find liability in the case of an assault by a physical education teacher at a school. It found that, while the student-teacher relationship provided the opportunity, the circumstances of the commission of the offence were not sufficiently connected to that relationship. At paragraph 25, the Court of Appeal accepted the trial judge’s reasoning that the incidental connection between the Board’s activities of building schools, hiring teachers, and mandatory attendance is insufficient to trigger liability. The trial judge found that while the Defendant teachers job gave him opportunity to abuse his authority, his duties did not require anything approaching intimate contact. The trial judge also found that the Board’s encouragement of teachers to act as mentors and role models, and the encouragement of students to listen to and respect teachers, did not substantially increase the risk of harm. The Court of Appeal found that the trial judge’s conclusions were supported by the evidence.

[149] Again, with respect, Gorsline is distinguishable from the case at bar. In many ways, the cases are fact specific. I note that Gorsline was not followed in John Doe v. Avalon East School Board, 2004 Carswell NFLD 378 (NFLD SC Trial Division). Justice Raour applied the tests from Bazley and Jacobi and found a school board vicariously liable for a sexual assault committed by a teacher on a student. Similarly, in this case, I have attempted to analyze the power relationship and the significant connection between the creation of the risk and the wrong which accrued. I have no difficulty in determining that the relationship here is sufficient to trigger liability.

[150] The position of the Defendant and its probation officer employees may usefully be contrasted with the circumstances which existed in E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia [2005] SCJ No. 61. In that case the court found that in the absence of a strong connection between the job the wrong doing employee was employed to do (baker, motorboat operator and odd-job man) and the circumstances in which the abuse took place meant that vicarious liability could not be imposed. At paragraph 3 of the majority decision, Binnie, J. wrote as follows:

“3     The trial judge found vicarious liability because in his view, the ‘operational characteristics’ of the residential school created a risk of sexual abuse, and the risk materialized in harm to the appellant ([2001] B.C.J. No. 2700 (QL), 2001 BCSC 1783). The Court of Appeal overturned that result ((2003), 14 B.C.L.R. (4th) 99, 2003 BCCA 289). In its view, the trial judge had paid insufficient attention to the absence of any strong connection between the sexual abuse and Saxey's job on the fringes of school life as a baker, part-time motorboat operator and odd-job man. As a matter of law, the conclusion of the Court of Appeal is correct. The argument that vicarious liability should be strictly imposed without regard to the connection between the misconduct at issue and the job held by the particular wrongdoing employee was decisively rejected in Bazley and Jacobi v. Griffiths, [1999] 2 S.C.R. 570. The trial judge's approach effectively put all the respondent's employees on the same footing without giving due weight to the fact that it was Saxey who harmed the appellant by intentional wrongs that for present purposes must be taken to have been unknown, unauthorized, unforeseen and unforeseeable by the respondent. Saxey's work in the bakery did not involve any degree of intimacy. Nor did driving the motorboat or doing odd maintenance jobs confer any such authority or intimacy. In the absence of a strong connection between the job Saxey was employed to do and the circumstances in which the abuse took place, the most that can be said is that working in a residential school offered Saxey an opportunity for contact with young boys like the appellant and a deference to authority on their part that otherwise might not exist. However in a series of cases dealing with employer's vicarious liability for sexual abuse, the Court has repeatedly stated that ‘mere opportunity ... does not suffice’. See Bazley at para. 40; Jacobi, at para. 45; K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51, at para. 94. See also John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17, and H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25. Such general liability, if it is to be created, is a matter for the legislature.”

 

[151] In the present case, the strong connection does exist between the job Lalo was employed to do and the circumstances in which the abuse took place. Lalo, with his authority and intimate contact with BMG, had more than “a mere opportunity” to sexually abuse BMG.

[152] Conclusion: I find that the Defendant is vicariously liable for the sexual assaults committed by Lalo on BMG.

[153] Causation: Before I assess damages, I have to look at causation. The leading case on the issue of causation is Athey v. Leonati [1996] S.C.J. No. 102 (SCC) ... commencing at paragraph 13, Justice Major, writing for the court stated:

“13   Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, [1990] 2

S.C.R. 311; McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.).

 

14          The general, but not conclusive, test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren, [1972] S.C.R. 441.

15          The ‘but for’ test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant's negligence ‘materially contributed’ to the occurrence of the injury: Myers v. Peel County Board of Education; [1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff'd [1989] 2 S.C.R. 979.

16       In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant's tortious conduct caused or contributed to the plaintiff's injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at

p. 490, and as was quoted by Sopinka J. at p. 328, it is ‘essentially a practical question of fact which can best be answered by ordinary common sense’. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring

. . .

As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.” (Emphasis added)

[154] Justice Major also addresses the so called "thin skull" and "crumbling skull"doctrines. At paragraph 34, His Lordship stated that the "thin skull" rule:

“... makes the tortfeasor liable for the plaintiff's injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff's losses are more dramatic than they would be for the average person.”

 

[155] At paragraph 35, His Lordship explained the "crumbling skull" rule stating:

 

“The so-called ‘crumbling skull’ rule simply recognizes that the pre-existing condition was inherent in the plaintiff's ‘original position’. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, supra; Malec v. J. C. Hutton Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.” (Emphasis added)

 

[156] BMG appears to be the classic “crumbling skull” situation. To paraphrase, in this case I am satisfied that there is a measurable risk that BMG’s pre-existing condition would have detrimentally affected him in the future. The physical and mental abuse BMG suffered at home had to have taken a significant psychological toll. As well, both BMG and his sister S were told that because they were adopted they did not belong in the family and that they would never go anywhere. I think it is reasonable to conclude that feelings of inadequacy and lack of self-confidence would naturally ensue from such treatment.

[157] S did go on to finish her schooling and to attend university. But it is unfair to say that but for the Lalo assaults BMG would have done the same. This would ignore the fact that BMG had significant difficulties with his schooling (as I have outlined above) prior to the Lalo assaults. It is more likely that, even without the assaults by Lalo, BMG would not have completed his schooling by the time that most adolescents his age would have done so. BMG and his family likely still would have become estranged and, without their emotional and financial support, BMG would not have finished his schooling in the normal course.

[158] On the other hand, BMG has demonstrated that he is a highly intelligent and resourceful person. Were it not for the PTSD triggered by the Lalo sexual assaults, it is likely that BMG would have supplemented his formal education. It is impossible to measure that factor with precision. It would appear to be a matter of common sense that BMG’s psychological and educational advancement was substantially affected by the sequelae of the Lalo assaults.

[159] The Defendant argues that BMG had options but that he made voluntary choices. The Defendant argues, for example, that BMG’s failure to upgrade his formal education had nothing to do with the Lalo assaults. The Defendant suggests that, if you remove the assaults from BMG’s history, his story and work history would be unchanged. In the Defendant’s view, BMG chose his career path and is now where he wants to be.

[160] I cannot accept the Defendant’s argument. To do so, I would have to conclude that the Lalo assaults constituted a momentary transient unpleasantness without any long-lasting psychological impact in BMG’s life. That conclusion would ignore the psychological evidence and commonsense.

[161] The Lalo assaults occurred when BMG was both physically and emotionally vulnerable. Prior to Lalo, BMG had frequently run away from home because he could not otherwise cope with the abuse perpetrated by his stepmother and father. It is in that fragile psychological state that BMG was delivered to Lalo. BMG was told by both the Court and his father that he had to obey Lalo. It was in that context that Lalo subjected BMG to the most degrading kind of sexual abuse imaginable.

[162] BMG had no where to turn. He could not complain at home where, because of his lies in the past, he would not be believed. Understandably, he would perceive that there was no authority figure to whom he could complain. Again, BMG would feel that he would not be believed by the system that employed Lalo. I am satisfied that BMG’s victimization by Lalo would have left him with an overwhelming sense of hopelessness, distrust and confusion. I am therefore not surprised that he kept running away for the next twenty years of his life. BMG would likely still be running were it not for the RCMP investigation which forced him to acknowledge and confront his past.

[163] I cannot precisely articulate the impact of the Lalo assaults on BMG’s education and career path. What I can say with some certainty is that the impact the Lalo assaults was substantial. I have no difficulty in concluding that, “but for” the Lalo assaults, BMG would at some point have at least gotten his high school equivalency. I have no doubt that he would then have successfully completed some form of trades training. In the result, BMG would have had more employment opportunities at an earlier age. Those opportunities would have significantly enhanced the income he has earned in the past and naturally continued into the future.

[164] General Damages: The assessment of non-pecuniary or general damages is always difficult and, of necessity, somewhat arbitrary. In S.Y v. F.G.C. [1996] BCJ No. 1596 (B.C.C.A.), the court stated the following:

“The foregoing cases present a variety of circumstances and present differing degrees of harm caused by sexual abuse. They exemplify the difficulty of giving solace or satisfaction to a person who has been abused by one he or she was entitled to trust, and who may suffer from the psychological impact of that abuse for years to come. What amount of money is sufficient as a substitute for lost pleasures and amenities, and as compensation for what yet remains to be suffered?”

[165] Further at paragraph 26 of his decision in JRS v. Glendinning [2004] O.J. No. 285 (SC), Justice Kerr quotes MacFarlane J.A. where the latter stated:

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

 

[166] In Glendinning, Justice Kerr went on to review a number of cases and determined that the appropriate range is between $125,000.00 and $250,000.00. In particular, he referenced Doe v. O’Dell [2003] O.J. No. 3546 (SC) in which Swinton J. had determined that the appropriate range was between $150,000.00 and $200,000.00.

[167] In Glendinning, Justice Kerr noted aggravating factors:

 

“These factors were said to include considerations such as whether the defendant was in a position of trust, whether the defendant’s response was characterized by remorse, the age of the plaintiffs at the time of the assaults, the nature, number and duration of the assaults, and the physical pain and mental suffering associated with the assaults.”

 

[168] The Defendant has urged me to consider a range of $35,000.00 to$60,000.00. He quoted V.P. v. Canada (Attorney General), [1999] SK.Q.B. 180 (Q.B.) and Curran v. MacDougall 2006 BCSC 933. The former case involved the accused touching the victim’s genitals and buttocks and ejaculating between his legs. In the latter the sexual abuse consisted of a prison correctional officer performing oral sex on the plaintiff. Neither of these cases involve abuse which compared in force or brutality to the abuse present in this case.

[169] The Defendant also cited C.M. v. Canada (Attorney General) 2004 SKQB 174 where the court awarded $37,500.00 in non-pecuniary damages for a single sexual assault consisting of anal penetration by a reserve school residential administrator on a child. I will say simply that each case must be assessed in light of its individual circumstances. The impact of the sexual assaults on the individual plaintiff is also largely determinative of the appropriate award.

[170] I am satisfied that the appropriate range has been identified in Glendinning and O’Dell cases noted above. The appropriate range is therefore between $125,000.00 and $250,000.00.

[171] The impact of the Lalo assaults on BMG is impossible to measure with precision. In particular, the impact on a 14 year old child of being anally raped by a fully grown man defies assessment. As I have noted above, Dr. Hayes, the psychologist, made a diagnosis of “Post Traumatic Stress Disorder in partial remission. Chronic”. Dr. Hayes noted that despite the sexual abuse, BMG has a good ability to function but suffers from some alienation.

[172] As I have also noted, Dr. Hayes determined that the abuse BMG experienced at the hands of Lalo would be sufficient in itself to result in the symptoms seen on his assessment. Dr. Hayes noted that BMG continues to suffer from the intrusive and avoidant components of PTSD to this day. BMG’s symptoms are, according to Dr. Hayes, “clearly chronic”. Dr. Hayes says that BMG remains haunted by his past and continues to have self-esteem concerns. The symptoms of PTSD have caused a marked disturbance in BMG’s life. I am satisfied that they continue to do so. Despite Dr. Hayes’ opinion, I believe that some of BMG’s psychological difficulties are partly attributable to his abusive home life.

[173] On the other hand, BMG has not suffered some of the more debilitating consequences seen in some of the cases. For example, he does not suffer from erectile dysfunction nor has he succumbed to substance abuse.

[174] I have also considered that Lalo was in a position of trust at the time the sexual assaults occurred. A further aggravating factor would be the age difference, that is, a mature adult male versus a 14 year old child victim. The assaults in question were of relatively short duration but the nature of the assaults (especially the anal rape) is an obvious aggravating factor.

[175] I am satisfied that an appropriate award for general damages, including aggravated damages, is $125,000.00. BMG is also entitled to prejudgment interest at 2.5 percent for 5 years on the general damage award.

[176] BMG: Past and future loss of income: I permitted the Plaintiff to call Cara Lane Brown to give expert evidence as a labour economist specializing in quantifying loss of income claims. She provided an actuarial report. Ms. Brown’s curriculum vitae is impressive. She has given expert evidence on many occasions both in this country and in the United States. The Defendant did not dispute Ms. Brown’s qualifications.

[177] The Defendant argued that Ms. Brown’s report is not based upon sufficient facts or data. [Poirier v. Dyer (1989), 91 N.S.R. (2d) 119 (N.S.S.C.)] The argument is premised upon the proposition that BMG was selective in terms of the information he provided to the psychologist, Dr. Hayes, and with respect to the psychological and employment records he provided. Ms. Brown relied upon Dr. Hayes’ report and conclusions when she made her economic assumptions. In light of my acceptance of Dr. Hayes’ findings, the Defendant’s objection largely disappears.

[178] I have already mentioned that I do not believe that BMG intentionally misled Dr. Hayes. I have taken into account that Dr. Hayes did not have as full an appreciation of BMG’s family conflicts as he might have. I have also concluded that, despite the informational deficiencies, Dr. Hayes’ diagnosis is fundamentally sound.

[179] Likewise, I reject the notion that BMG was selective in the production of his psychological and employment records. I am satisfied that BMG and his Counsel exercised their best efforts to secure any and all records still in existence. It should not be surprising that, after the passage of so much time (in some instances, 25 to 30 years), some records are simply no longer available.

[180] Ms. Brown benchmarked her calculations of BMG’s potential earnings with statistical sources available from Statistics Canada’s 1996 Census and the 2001 Census and Earnings of Men and Women 1984 - 1996. She used three scenarios to calculate BMG’s “without incident” income: That, but for Lalo, BMG would have (1) completed high school; (2) completed a two-year college diploma; or (3) completed a university degree.

[181] She then used the Statistics Canada information to quantify BMG’s income for each of those scenarios. She deducted his residual income insofar as it could be ascertained. I note that Ms. Brown relied upon data for Nova Scotia where possible. This was a conservative approach because I do not believe that BMG would necessarily have confined himself to Nova Scotia even if his circumstances had been normal.

[182] The Statistics Canada data does represent a reasonable starting point for quantifying BMG’s past and future loss of income. The alternative is to simply pull numbers out of the air and deem them to be appropriate figures. After careful reflection, however, I have concluded that BMG’s past and future financial loss is not amenable to precise arithmetical calculation. There are too many imponderables. The actuarial figures are helpful in that they provide a reference point to be considered in the context of all the evidence.

[183] I have no doubt that the Lalo assaults have had a significant financial impact upon BMG’s earnings. They will continue to have an impact upon his future earnings. The same can be said of the psychological aftermath of the severe physical and emotional abuse BMG suffered at home.

[184] I have concluded that but for the Lalo assaults, BMG would at some point have attained high school equivalency. He likely would then have gone on to trades training. Because of the family abuse and lack of support, it is unlikely that BMG would have gone to college or university. He would not have become a professional.

[185] Under Ms. Brown’s first scenario, high school completion, BMG’s potential loss of income was projected to be $1,094,5000.00. That figure is comprised of $636,000.00 for past loss of income (including appropriate prejudgment interest) and $458,500.00 for future loss of income. Those figures reflect the average incomes of high school graduates. They provide only limited insight into BMG’s individual circumstances. The calculation of residual income is based upon incomplete records and arbitrary projections.

[186] The impact of negative contingencies such as job loss, unemployment or injury are difficult to evaluate. Being of superior intelligence and resourcefulness, BMG has the ability to surpass the average income level of high school graduates in the future. Further, it is arguable that BMG could have mitigated his loss by making better use of his inheritance money. He could have spent $40,000.00, for example, to obtain the commercial pilot’s license he desires.

[187] In the end, I have to exercise some judgment to make a fair and reasonable award. I deem $500,000.00 to be an appropriate figure to compensate BMG for both his past and future loss of income. That figure is inclusive of prejudgment interest on the past loss component.

 

[188] Summary of Damages:
General Damages	$125,000.00
Prejudgment Interest (2.5% x 5)	15,625.00
Past & Future Loss of Income	$500,000.00
Total	$640,625.00

 

[189] BMG is also entitled to his costs and reasonable disbursements to be taxed by me. BMG’s Counsel should make a written submission on costs within 14 days of receipt of this decision. Defendant’s Counsel will then have 7 days to respond in writing. BMG’s Counsel will then have a further 7 days for a brief reply.

 

  Order accordingly.

 

J.