IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27 Date: July 28, 2020 Docket Number: 201801H0028 and 201801H0045 BETWEEN: JOHN DOE (G.E.B. #25) APPELLANT/ RESPONDENT BY CROSS-APPEAL AND: THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF ST. JOHN’S RESPONDENT/ APPELLANT BY CROSS-APPEAL - AND - BETWEEN: JOHN DOE (G.E.B. #26) APPELLANT/ RESPONDENT BY CROSS-APPEAL AND: THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF ST. JOHN’S RESPONDENT/ APPELLANT BY CROSS-APPEAL - AND - Page 2 BETWEEN: JOHN DOE (G.E.B. #33) APPELLANT/ RESPONDENT BY CROSS-APPEAL AND: THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF ST. JOHN’S RESPONDENT/ APPELLANT BY CROSS-APPEAL - AND - BETWEEN: JOHN DOE (G.E.B. #50) APPELLANT/ RESPONDENT BY CROSS-APPEAL AND: THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF ST. JOHN’S RESPONDENT/ APPELLANT BY CROSS-APPEAL Coram: Fry C.J.N.L., Hoegg and O’Brien JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador General Division 199901T3223, 199901T3224, 199901T3231, and 199901T3241 (2018 NLSC 60) Appeal Heard: March 21 and 22, 2019 Judgment Rendered: July 28, 2020 Reasons for Judgment: By the Court Counsel for the Appellants/Respondents by Cross-Appeal: Eugene Meehan Q.C., Thomas Slade, Geoffrey E. Budden and Paul Kennedy Counsel for the Respondent/Appellant by Cross-Appeal: Mark R. Frederick, Susan Adam Metzler and Chris T. Blom Page 3 INDEX Paragraph INTRODUCTION 1 THE APPEAL AND CROSS-APPEAL 7 ISSUES 15 CONCLUSION ON GROUNDS OF APPEAL AND CROSS-APPEAL 17 BACKGROUND 23 STANDARD OF REVIEW 39 ANALYSIS: THE APPEAL Issue 1: Did the judge err in concluding that the Archdiocese is not vicariously liable for the Brother’s sexual assaults of the appellants? 45 The Law 45 The Judge’s Characterization of Vicarious Liability 74 The Judge’s Analysis of the Evidence 83 Piecemeal Assessment of the Evidence 91 Control of Day-to-Day Operations at Mount Cashel 103 Summary 118 Should a New Trial be Ordered? 119 Is the Archdiocese Vicariously Liable for the Brothers’ Sexual Assaults of the Appellants? 125 The Relationship Between the Archdiocese and the Brothers at Mount Cashel 126 Conclusion on the Relationship Between the Archdiocese and the Brothers at Mount Cashel 181 Connection between the Brothers’ Assigned Tasks and their Wrongdoings 186 Conclusion on the Connection between the Brothers’ Assigned Tasks and their Wrongdoings 200 Disposition on Vicarious Liability for the Brothers’ Wrongdoings 201 Issue 2: Did the judge err in concluding the Archdiocese is not liable for Monsignor Ryan’s conduct? 203 Negligence and Vicarious Liability 217 Was Monsignor Ryan Negligent? 224 Determining Whether a Duty of Care Exists: the Anns/Cooper Test 226 Duty of Care Relating to a Failure to Act (Nonfeasance) 233 The Judge’s Duty of Care Analysis 239 Did the Judge Err in Concluding there was No Duty of Care? 246 Page 4 Should the Prima Facie Duty of Care be Negated for Policy Reasons? 295 The Judge’s Breach of Duty Analysis 305 The Judge Did Not Explicitly Identify the Standard of Care 316 Did the Judge Err Regarding the Applicable Burden of Proof in Historic Claims? 322 The Evidence at Trial Regarding Breach of Duty 331 Did the Judge Err in Assessing the Evidence and Finding No Breach of Duty? 337 Was there a Fiduciary Relationship Between Monsignor Ryan and the Appellants? If so, was there a Breach of Fiduciary Duty? 367 Per se Fiduciary Relationship 379 Ad hoc Fiduciary Relationship 395 Summary and Disposition on this Ground of Appeal 401 Issue 3: Did the judge err in concluding that the Archdiocese was not directly negligent? 409 Additional Observations 423 CROSS-APPEAL ON DAMAGES 435 Issue 1: Did the judge err by failing to apply the correct test in assessing damages? 443 Issue 2: Did the judge err in failing to properly consider the impact of parental loss, abandonment, and physical abuse when assessing damages? 447 Issue 3: Did the judge err in failing to properly consider the genetic link to alcohol abuse when assessing damages? 468 Issue 4: Did the judge err in the assessment of the claim for loss of income for G.E.B. 25? 480 Issue 5: Did the judge err in the assessment of the claim for loss of income for G.E.B. #33 ? 487 Issue 6: Did the judge err in the manner in which he awarded pre-judgment interest on the claims for loss of income? 496 Pre-Judgment Interest at Common Law 504 Statutory Approach – Legislative History 513 The Reasoning in Slaney and Benedict 519 Causes of Action 533 Law and Analysis 554 Disposition of the Cross-Appeal 578 SUMMARY AND CONCLUSION 579 COSTS 583 Page 5 By the Court: INTRODUCTION [1] In a suit filed in December 1999, four plaintiffs, G.E.B. #25, G.E.B. #26, G.E.B. #33 and G.E.B. #50 (the plaintiffs or the appellants), claimed against the Roman Catholic Episcopal Corporation of St. John’s (the Diocese or Archdiocese) and the Christian Brothers Institute Inc. for damages resulting from the sexual abuse they suffered while they were boys living at Mount Cashel orphanage in St. John’s during the 1950s. [2] The judge accepted and it is not contested on this appeal that the plaintiffs received partial payment of their claims against the Christian Brothers after bankruptcy proceedings resulted in liquidation of their assets. The record does not disclose a Notice of Discontinuance or Satisfaction Piece in this regard, although counsel for the plaintiffs stated at a discovery proceeding that the action was discontinued. That said, the Christian Brothers Institute Inc. remained as a defendant on the Statement of Claim although they did not participate in the trial. [3] The plaintiffs’ suit was tried over approximately 35 days during 2016. The plaintiffs alleged that the Archdiocese was vicariously liable for the Brothers’ sexual abuse of them, arguing that the Archdiocese had a sufficiently close relationship with the Brothers to justify it being found vicariously liable for their actions. As well, the plaintiffs alleged that the Archdiocese was vicariously liable for the negligence of one of its priests, Monsignor Ryan, who lived at the orphanage. The plaintiffs also alleged that Monsignor Ryan breached his fiduciary duty to them. Finally, the plaintiffs alleged that the Archdiocese was directly liable in negligence because it knew that the plaintiffs were being sexually abused at the orphanage but failed to act on that knowledge. [4] The evidence in this case implicated five Brothers at Mount Cashel who were there during the 1950s when the plaintiffs were residents. The Archdiocese did not dispute that the Brothers had abused the plaintiffs, and the judge accepted the Archdiocese’s acknowledgement in this regard. However, the Archdiocese did dispute that it was negligent or that it was vicariously liable for the Brothers’ or Monsignor Ryan’s actions or inaction. The Archdiocese also disputed the degree of causal connection between the sexual assaults and the damages claimed by the plaintiffs. Page 6 [5] In a written judgment filed March 16, 2018, the judge dismissed the plaintiffs’ claims against the Archdiocese. Despite finding that the Archdiocese was not liable, the judge provisionally assessed damages respecting each of the four plaintiffs. [6] The judge made several comments respecting the plaintiffs’ claim against the Christian Brothers. At paragraph 2 of his decision, the judge stated that “the Christian Brothers appear to have acknowledged liability” and at paragraph 49 of his decision, he said that he had “no doubt about the Plaintiffs’ description of the events [the sexual abuse] that happened to them personally”. Also, at paragraph 189 he stated that “there would be little doubt about the imposition of liability on the Christian Brothers organization”, and noted at paragraph 199 that “[t]he Christian Brothers organization, which would have been found vicariously liable, has liquidated its assets through bankruptcy proceedings…”. THE APPEAL AND CROSS-APPEAL [7] The appellants appeal the judge’s dismissal of their claims, saying that the judge made several errors in coming to his conclusions. They argue that the judge erred in dismissing their vicarious liability claims against the Archdiocese, and maintain that vicarious liability ought to have been imposed on the Archdiocese by two routes. [8] First, they argue that the Archdiocese was so closely related to the Brothers at Mount Cashel that the imposition of vicarious liability on the Archdiocese is appropriate. In this regard they say that the judge failed to consider the relationship between the Archdiocese and the Brothers in light of the policy rationales for the doctrine of vicarious liability, and that the judge assessed the evidence in a piecemeal fashion. The appellants also argue that the judge failed to consider key pieces of evidence, and that he focused unduly on the Archdiocese’s lack of involvement in the day-to-day operations of the orphanage while minimizing or discounting evidence respecting the Archdiocese’s involvement and influence in other operational matters. [9] Second, the appellants argue that the judge erred in failing to find the Archdiocese vicariously liable for the negligence of its priest, Monsignor Ryan, whom the Archdiocese assigned to live on the property to be the spiritual advisor to the appellants. The appellants say that Monsignor Ryan had been told about the Brothers’ sexual abuse of the residents and that he failed to take action to have it addressed. The appellants also argue that Monsignor Ryan breached his fiduciary duty to them. Page 7 [10] Finally, the appellants also argue that the judge erred in dismissing their claim that the Archdiocese was directly negligent.