COURT OF CANADA
Majesty The Queen in Right of Canada, as
by the Minister of Indian Affairs and
Development, and the United Church of Canada
Majesty The Queen in Right of Canada, as represented
the Minister of Indian Affairs and Northern Development
Church of Canada, R.A.F., R.J.J., M.L.J., M.W. (2),
Leroy Barney and Patrick Dennis Stewart
‑ and ‑
of First Nations, Women’s Legal Education
Action Fund, Native Women’s Association of
and DisAbled Women’s Network of Canada
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella
and Charron JJ.
(paras. 1 to 98)
McLachlin C.J. (Major, Bastarache, Binnie, LeBel, Deschamps,
Fish, Abella and Charron JJ. concurring)
Blackwater v. Plint,  3 S.C.R. 3, 2005 SCC 58
Frederick Leroy Barney Appellant
Her Majesty The Queen in Right of Canada, as
represented by the Minister of Indian Affairs and
Northern Development, and United Church of Canada Respondents
Her Majesty The Queen in Right of Canada, as represented
by the Minister of Indian Affairs and Northern Development Appellant
United Church of Canada, R.A.F., R.J.J., M.L.J., M.W. (2),
Frederick Leroy Barney and Patrick Dennis Stewart Respondents
Assembly of First Nations, Women’s Legal Education
and Action Fund, Native Women’s Association of
Canada and Disabled Women’s Network of Canada Interveners
Indexed as: Blackwater v.
Neutral citation: 2005 SCC 58.
File No.: 30176.
2005: May 16; 2005: October 21.
Present: McLachlin C.J. and Major, Bastarache,
Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for british columbia
Torts — Vicarious liability — Charitable immunity —
Negligence — Fiduciary duty — Former students of Indian residential school
operated by Government of Canada and United Church claiming damages for sexual
abuse and other harm suffered while residing at school — Whether Canada and
Church jointly vicariously liable to former students for sexual assaults by
dormitory supervisor — Whether doctrine of charitable immunity applies to
exempt Church from liability — Whether negligence or fiduciary duty by Canada
and Church established.
Torts — Non‑delegable statutory duty — Former
students of Indian residential school operated by Government of Canada and
United Church claiming damages for sexual abuse and other harm suffered while
residing at school — Whether language of Indian Act provisions establishes non‑delegable
duty of care on Canada to protect safety and welfare of Aboriginal children while
attending residential schools — Indian Act, S.C. 1951, c. 29,
ss. 113, 114.
Damages — Apportionment — Vicarious liability —
Former students of Indian residential school operated by Government of Canada
and United Church claiming damages for sexual abuse and other harm suffered
while residing at school — Whether unequal apportionment of responsibility
appropriate in cases of vicarious liability — If so, whether trial judge’s unequal apportionment of damages between Canada
and Church correct.
Damages — Assessment — Effect of prior abuse —
Former student of Indian residential school operated by Government of Canada
and United Church claiming damages for sexual abuse and other harm suffered
while residing at school — Whether unrelated traumas suffered by student before
coming to residential school and statute‑barred wrongs at school should
have been considered by trial judge in assessing damages for sexual abuse.
Damages — General damages — Aggravated damages —
Punitive damages — Quantum — Loss of future earning opportunity — Whether
trial judge considered correct factors in assessing and awarding damages.
The Government of Canada and the United Church of
Canada operated an Indian residential school in British Columbia in the 1940s,
1950s and 1960s. Aboriginal children were taken from their families pursuant to
the Indian Act and sent to the school. They were disciplined by
corporal punishment. Some, like the appellant B, were repeatedly and brutally
sexually assaulted. Four actions were commenced in 1996 by former residents of
the school claiming damages for sexual abuse and other harm. The trial judge
found that all claims other than those of a sexual nature were statute‑barred.
P, a dormitory supervisor, was held liable for sexual assault. Canada was held
liable for the assaults on the basis of breach of non‑delegable statutory
duty, and also because Canada and the Church were jointly and vicariously
liable for these wrongs. Fault was apportioned 75 percent to Canada and
25 percent to the Church. The trial judge awarded $125,000 general
damages and $20,000 aggravated damages to B against the Church and Canada. A
further $40,000 punitive damages, plus a future counselling fee of $5,000, was
awarded to B against P. Other plaintiffs were awarded amounts commensurate
with their situations. The Court of Appeal applied a doctrine of charitable
immunity to exempt the Church from liability and placed all liability on Canada
on the basis of vicarious liability, awarding B an additional $20,000 for loss
of future earning opportunity. Otherwise, it maintained the differing awards
for sexual abuse.
Held: B’s appeal is
dismissed. Canada’s appeal is allowed in part. The judgment of the trial
judge on the issues of joint vicarious liability against the Church and Canada,
and assessment and apportionment of damages, is restored. The judgment of the
Court of Appeal on the issue of charitable immunity is set aside. The Court of
Appeal’s award for loss of future earning opportunity is upheld.
The Church exerted sufficient control over the
operations at the residential school that gave rise to the wrong to be found
vicariously liable with Canada for the wrongful acts of P. The trial judge’s
factual findings clearly support a conclusion that the Church was one of P’s
employers in every sense of the word. None of the considerations relied on by
the Court of Appeal — Canada’s degree of control over the residential school,
the Church’s specific mandate of promoting Christian education, and the
difficulty of holding two defendants vicariously liable for the same wrong —
negate the imposition of vicarious liability on the Church. Similarly, the
Court of Appeal erred in exempting the Church from liability on the ground of
charitable immunity. A class‑based exemption from vicarious liability
finds support neither in principle nor in the jurisprudence. Exempting non‑profit
organizations when government is present would not motivate such organizations
to take precautions to screen their employees and protect children from sexual
abuse. The presence of the government does not guarantee the safety of
children, particularly where, as in this case, the non‑profit
organization has day‑to‑day management of the institution. 
 [31‑32]  
The trial judge erred in finding a non‑delegable
statutory duty to ensure the safety and welfare of the students at the school
in the text of ss. 113 and 114 of the 1951 Indian Act. First, the
language of the provisions uses the permissive term “may”, as opposed to the
directive term “shall”, limiting the possibility of finding an obligation as
strong as a duty. Second, the power of the government to enter into agreements
with religious organizations for the care and education of Indian children
suggests that the duty is eminently delegable and was contracted out of by the
government. Arguments based on general obligations outside the strict language
of the statute and the residential school setting, such as Parliament’s control
over definition and registration of Indians and jurisdiction over reserves, are
not persuasive. They risk encroaching on other grounds of liability such as
breach of fiduciary duty and negligence. Unless a non‑delegable
statutory duty is based on the language of the statute, the boundaries between
the various grounds of liability become meaningless. [50‑51] 
No basis has been established for finding negligence,
breach of fiduciary duty, or for reassessing the damage awards. The trial
judge correctly apportioned the damages unequally between Canada and the
Church. Parties may be more or less vicariously liable for a wrong depending
on their level of supervision and direct contact. Here, the trial judge found
that Canada was in a better position than the Church to supervise the situation
and prevent the loss. That finding, which was grounded in the evidence, should
not be interfered with. Since the basis for assigning greater responsibility
to Canada was its greater control over the school operations, the assessment is
not affected by the finding that there was no non‑delegable duty under
the Indian Act. Lastly, the trial judge did not err in not considering
the traumas suffered by B in his home before coming to the residential school
and the statute‑barred wrongs at the school in assessing damages. First,
in the absence of evidence that B’s family difficulties prior to coming to the
school had exacerbated the damage B suffered from the sexual assaults he
sustained at the school, the trial judge had no choice but to attempt to
isolate those traumas and to confine damages to only those arising from the
actionable torts, the sexual assaults. Second, to permit damages to be awarded
for wrongful acts that are subject to limitation periods that have expired
would subvert the legislation and compensate for torts that have been alleged
but not proven. It would be to override legislative intent, and fix liability
in the absence of legal proof. [70‑72]     
Referred to: Bazley
v. Curry,  2 S.C.R. 534; Jacobi v. Griffiths,  2 S.C.R.
570; R. v. Salituro,  3 S.C.R. 654; E.D.G. v. Hammer,
 2 S.C.R. 459, 2003 SCC 52; Lewis (Guardian ad litem of) v. British
Columbia,  3 S.C.R. 1145; K.L.B. v. British Columbia,  2
S.C.R. 403, 2003 SCC 51; Chernesky v. Armadale Publishers Ltd.,  6
W.W.R. 162; Funnell v. C.P.R.,  2 O.R. 325; Bell Canada v. Cope
(Sarnia) Ltd. (1980), 11 C.C.L.T. 170; Gerling Global General Insurance
Co. v. Siskind, Cromarty, Ivey & Dowler (2004), 12 C.C.L.I. (4th) 278; Bow
Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,  3
S.C.R. 1210; Bluebird Cabs Ltd. v. Guardian Insurance Co. of Canada (1999),
173 D.L.R. (4th) 318; Athey v. Leonati,  3 S.C.R. 458; Hall v.
Hebert,  2 S.C.R. 159; Whiten v. Pilot Insurance Co.,  1
S.C.R. 595, 2002 SCC 18.
Statutes and Regulations Cited
Act, S.C. 1951, c. 29, ss. 113, 114, 115,
Indian Residential School
Regulations, 1953, Reg. 2, 13, 14, 15(1)(a), (b),
(c), (d), (h).
Negligence Act, R.S.B.C. 1996, c. 333, s. 1(2).
S. Vicarious Liability in the Law of Torts. London: Butterworths,
Husak, Douglas N. “Varieties
of Strict Liability” (1995), 8 Can. J.L. & Jur. 189.
APPEALS from a judgment of the British Columbia Court
of Appeal (Esson, Hall, Saunders, Low and Smith JJ.A.) (2003), 21 B.C.L.R.
(4th) 1, 235 D.L.R. (4th) 60, 192 B.C.A.C. 1, 315 W.A.C. 1, 30 C.C.E.L. (3d) 1,
20 C.C.L.T. (3d) 207,  3 W.W.R. 217,  B.C.J. No. 2783 (QL) (sub
nom. W.R.B. v. Plint), 2003 BCCA 671, reversing in part judgments of
Brenner J. (1998), 52 B.C.L.R. (3d) 18 (sub nom. B. (W.R.) v. Plint),
161 D.L.R. (4th) 538,  4 C.N.L.R. 13,  1 W.W.R. 389,  B.C.J.
No. 1320 (QL) (sub nom. W.R.B. v. Plint) and (2001), 93 B.C.L.R. (3d)
228,  B.C.J. No. 1446 (QL), 2001 BCSC 997. Appeal of Frederick
Leroy Barney dismissed. Appeal of Canada allowed in part.
Diane H. Soroka,
Peter R. Grant and Allan Early, for the appellant/respondent
Frederick Leroy Barney and the respondents R.A.F., R.J.J., M.L.J. and M.W. (2).
Mitchell R. Taylor
and James M. Ward, for the appellant/respondent Her Majesty the
Queen in Right of Canada, as represented by the Minister of Indian Affairs and
Christopher E. Hinkson, Q.C., and Bernard S. Buettner, for the
respondent the United Church of Canada.
David Paterson, for the
respondent Patrick Dennis Stewart.
Jack R. London, Q.C.,
and Bryan P. Schwartz, for the intervener the Assembly of First Nations.
Marie Elena O’Donnell,
for the interveners the Women’s Legal Education and Action Fund, the Native
Women’s Association of Canada and the Disabled Women’s Network of Canada.
The judgment of the Court was delivered by
The Chief Justice —
Are the Government of Canada and the United Church of Canada (“Church”)
liable to Aboriginal students who attended residential schools operated by them
in British Columbia in the 1940s, 1950s and 1960s? If so, on what legal basis
are they liable, and how should liability be apportioned between them?
Finally, what damages should be awarded? These are the central questions on
The appeal arises from four actions commenced in 1996 by 27 former
residents of the Alberni Indian Residential School (“AIRS”) claiming damages
for sexual abuse and other harm. The children had been taken from their
families pursuant to the Indian Act, S.C. 1951, c. 29, and sent to the
school, which had been established by the Church’s predecessor, the
Presbyterian Church of Canada, in 1891 to provide elementary and high school
education to Aboriginal children whose families resided in remote locations on
the west coast of Vancouver Island. The children were cut off from their
families and culture and made to speak English. They were disciplined by
corporal punishment. Some, like the appellant Mr. Barney, were repeatedly and
brutally sexually assaulted.
A number of former students, including Mr. Barney, brought an action for
damages for the wrongs they had suffered. The trial proceeded in two stages;
an inquiry into vicarious liability ((1998), 52 B.C.L.R. (3d) 18 (“1998
decision”)) followed by a further liability and damages assessment three years
later ((2001), 93 B.C.L.R. (3d) 228, 2001 BCSC 997 (“2001 decision”)).
The trial judge found that all claims other than those of a sexual
nature were statute-barred. He held a dormitory supervisor, Plint, liable to
six plaintiffs for sexual assault. He held Canada liable for the assaults on
the basis of breach of non-delegable statutory duty, and also found that Canada
and the Church were jointly and vicariously liable for these wrongs. He
apportioned fault 75 percent to Canada and 25 percent to the Church. The trial
judge awarded Mr. Barney $125,000 general damages and $20,000 aggravated
damages, against the Church and Canada. In addition, the trial judge awarded
Mr. Barney punitive damages against Plint in the sum of $40,000 plus a future
counselling fee of $5,000. Other plaintiffs were awarded amounts commensurate
with their situations.
All the parties appealed to the B.C. Court of Appeal. The Court of
Appeal applied a doctrine of charitable immunity to exempt the Church from
liability and to place all liability on Canada on the basis of vicarious
liability ((2003), 21 B.C.L.R. (4th) 1, 2003 BCCA 671). It expressed the view
that Canada was more responsible than the Church and in a better position to
compensate for the damage, and concluded that vicarious liability should not be
imposed on the Church. It also granted one of the plaintiffs, M.J., a new
trial, and increased the damages of two others. The Court of Appeal awarded
Mr. Barney an additional $20,000 for loss of future earning opportunity.
Otherwise, it maintained the differing awards for sexual abuse.
The plaintiff Mr. Barney and the defendant Canada now appeal to this
Court. Mr. Barney alleges errors in the application of the principles of
liability and the assessment of damages. More particularly, he raises the
1. Did the courts below err in the
application of the principles regarding liability for, and assessment of,
damages in the circumstances of sexual abuse of Mr. Barney where the defendants
who are liable for the sexual abuse are also responsible for other tortious,
but time-barred, acts?
2. Did the courts below err in
finding no breach of fiduciary duty by the defendants?
3. Did the courts below err in their
application of the test for negligence and in finding that the defendants were
4. Did the courts below err in the
calculation of general and aggravated damages?
5. Did the courts below err in not
awarding punitive damages against Canada?
6. Did the Court of Appeal err in
awarding the appellant only a nominal award for loss of future earning
Canada raises the following issues relating to liability and fault:
1. Whether in the circumstances of
this case the Court of Appeal erred in granting the Church charitable immunity
from vicarious liability;
2. Whether the trial judge erred in
finding Canada owed and breached a non-delegable duty arising from the Indian
Act such that Canada is liable for the abuse the plaintiffs suffered at the
3. Whether the trial judge erred in
apportioning fault between Canada and the Church on anything but an equal basis
in circumstances where both defendants were liable solely on no-fault legal
The two appeals, considered together, raise the following legal issues,
which I propose to deal with in order:
2. Vicarious liability
3. The doctrine of charitable immunity
4. Non-delegable statutory duty
5. Fiduciary duty
6. Apportionment of damages
7. Damages: the effect of prior harm
8. General and aggravated damages: quantum
9. Punitive damages
10. Loss of future opportunity
A more general issue lurks beneath the surface of a number of the
specific legal issues. It concerns how claims such as this, which reach back
many years, should be proved, and the role of historic and social science
evidence in proving issues of liability and damages. For example, to what
extent is evidence of generalized policies toward Aboriginal children
relevant? Can such evidence lighten the burden of proving specific fault and
damage in individual cases? I conclude that general policies and practices may
provide relevant context for assessing claims for damages in cases such as
this. However, government policy by itself does not create a legally
actionable wrong. For that, the law requires specific wrongful acts causally
connected to damage suffered. This appeal must be decided on the evidence
adduced at trial and considered by the Court of Appeal.
In the result, I conclude that the Court of Appeal erred in finding that
the Church was protected by the doctrine of charitable immunity, and that the
trial judge erred in finding a non-delegable statutory duty on Canada on the
terms of the Indian Act. I would not interfere with the trial judge’s
conclusions on negligence, vicarious liability, breach of fiduciary duty or the
assessment of damages.
Mr. Barney argues that the trial judge erred in dismissing the claims
that the Church and Canada were negligent in employing and continuing to employ
various employees when they knew or ought to have known that the employees were
pedophiles, in failing to take reasonable steps to prevent or stop physical and
sexual assaults, in failing to investigate abuse after it was reported by the
students, and in failing to exercise reasonable supervision and direction over
The trial judge carefully considered the law and the evidence on the
issue of negligence. He found that both Canada and the Church were sufficiently
proximate to the claimants to give rise to a duty of care to them. He rejected
the argument that Canada was exempt from negligence on the basis that its
decisions arose from policy decisions: “Here Canada is being taken to task for
not only its policy of having Indian residential schools such as AIRS, but also
the steps that it took or failed to take to execute that policy” (2001 decision,
at para. 79).
Having concluded that both the Church and Canada owed a duty of care to
the claimants, the trial judge examined the applicable standard of care to
define the extent of that duty. The question was what Canada and the Church
knew or ought to have known, judged by the standards applicable at the time of
the acts — the 1940s to the 1960s. In other words, was the risk of sexual
assault of the children reasonably foreseeable at the time?
The trial judge concluded that the harm was not foreseeable on the
evidence before him. There was no evidence that the possibility of sexual
assault was actually brought to the attention of the people in charge of AIRS.
The trial judge found 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.
Former employees at AIRS testified that they were ignorant of any systemic or
widespread abuse at the school and the doctor who cared for the children there
never suspected abuse. On the two occasions that a sexual abuse was brought to
the supervisor’s attention, the perpetrator was immediately fired.
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
of” (2001 decision, at 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. As a result, the trial judge dismissed the
claims of negligence against the Church and Canada.
Mr. Barney does not point to specific errors in the trial judge’s
application of the test and conclusion on standard of care. Instead he focuses
on the trial judge’s factual findings. In particular, he argues that the
Church and Canada should have investigated why so many children were running
away from AIRS and clarified the complaints of the children. This goes to the
actual and constructive knowledge of the defendants, and more particularly,
what steps they should have taken if they had had knowledge of sexual abuse.
The trial judge addressed these matters thoroughly and sensitively in his
reasons, and the Court of Appeal correctly concluded that no error in his
conclusions on negligence had been demonstrated.
Mr. Barney’s appeal on this point must be dismissed.
The trial judge accepted that the Church and Canada were vicariously
liable for the wrongful acts of the dormitory supervisor, Plint. The Court of
Appeal disagreed. While it upheld the trial judge’s finding that Canada was
vicariously liable because of its control over the principal and activities at
AIRS, the court held that the Church’s non-profit status exempted it from any
I conclude that the trial judge was correct in concluding that both the
Church and Canada are vicariously liable for the wrongful acts of Plint.
Vicarious liability may be imposed where there is a significant
connection between the conduct authorized by the employer or controlling agent
and the wrong. Having created or enhanced the risk of the wrongful conduct, it
is appropriate that the employer or operator of the enterprise be held
responsible, even though the wrongful act may be contrary to its desires: Bazley
v. Curry,  2 S.C.R. 534. The fact that wrongful acts may occur is a
cost of business. The imposition of vicarious liability in such circumstances
serves the policy ends of providing an adequate remedy to people harmed by an
employee and of promoting deterrence. When determining whether vicarious
liability should be imposed, the court bases its decision on several factors,
which include: (a) the opportunity afforded by the employer’s enterprise for
the employee to abuse his power; (b) the extent to which the wrongful act
furthered the employer’s interests; (c) the extent to which the employment
situation created intimacy or other conditions conducive to the wrongful act;
(d) the extent of power conferred on the employee in relation to the victim;
and (e) the vulnerability of potential victims.
I turn first to the vicarious liability of the Church. On the
documents, the Church was Plint’s immediate employer. Plint was in charge of
the dormitory in which Mr. Barney slept and was answerable to the Church. The
trial judge considered the legal test for vicarious liability and concluded
that the Church was one of Plint’s employers. It employed him in furtherance
of its interest in providing residential education to Aboriginal children, and
gave him the control and opportunity that made it possible for him to prey on
vulnerable victims. In these circumstances, the trial judge found the Church,
together with Canada, to be vicariously liable for Plint’s sexual assault of
the children. However, the Court of Appeal concluded that because of
management arrangements between the Church and Canada, the Church could not be
considered Plint’s employer for purposes of vicarious liability.
The trial judge made at least eight factual findings that support his
conclusion that the Church was one of Plint’s employers in every sense of the
word and should be vicariously liable for the assaults.
First, the principal, who was responsible for hiring and supervising
dormitory supervisors, was hired by the Church subject to Canada’s approval as
a matter of convention (Caldwell in 1944 and Dennys in 1958) and as a matter of
agreement (Andrews in 1962): 1998 decision, at paras. 54-55.
Second, it was Principal Andrews’ understanding that the Church hired
and fired him. In the course of his employment, the principal communicated with
both Canada and the Church on a regular basis. The Church was his direct
supervisor and controlled the principal’s salary: 1998 decision, at para. 60.
Andrews’ vice-principal confirmed that he was hired by a representative of the
Church: 1998 decision, at para. 61.
Third, the Church was involved in all aspects of the operation and
management of AIRS, including the ongoing supervision of the principal, the
periodic inspection of the school, the hiring of Church workers directly
(although it was not responsible for hiring teaching staff after 1949) and the religious
education of the students: 1998 decision, at para. 65. In its 1993 Brief to
the Royal Commission on Aboriginal Peoples, the Church described that it was
responsible for the “day-to-day atmosphere and activity” of the schools as
“implementing agents”: 1998 decision, at para. 66. The principal controlled
Plint in the conduct of his duties as dormitory supervisor.
Fourth, the Church managed a pension plan for lay employees, though the
employer’s contributions were paid by Canada: 1998 decision, at para. 69.
Fifth, the principal’s authority to dismiss employees was subject to
review by the Church, and dismissed employees could appeal to the Church
Advisory Committee: 1998 decision, at para. 69.
Sixth, the Church made periodic grants to the school’s operation
(although the budget was funded by Canada), guaranteed the AIRS overdraft and
set a limit to the school’s line of credit: 1998 decision, at paras. 70-71.
Seventh, the Church inspected the school annually and provided the
Christian education at the school: 1998 decision, at paras. 70-71.
Finally, the Church appointed an advisory committee to ensure that
Church policies were being carried out at the school: 1998 decision, at para.
In summary, the trial judge adduced compelling reasons for his
conclusion that the Church did in fact exert sufficient control to be found
vicariously liable with Canada.
The Court of Appeal, in rejecting the Church’s vicarious liability, relied
on Canada’s degree of control over AIRS, the Church’s specific mandate to
promote Christian education, and the difficulty of holding two defendants —
Canada and the Church — vicariously liable for the same wrong. I conclude that
none of these considerations negate the imposition of vicarious liability on
The Court of Appeal’s first reason for not imposing vicarious liability
on the Church is that this would be inappropriate, given the degree of control
over the operations exercised by the government. In making this finding, the
Court of Appeal engaged in extensive re-evaluation of the evidence to negate
the trial judge’s conclusion that the Church had sufficient control to attract
vicarious liability. Esson J.A. emphasized that the agreement between the
government and the Church did not transfer all management responsibility to the
Church, and that under the agreement the Minister retained detailed control
over the operation. He pointed out that Canada had taken the position before
the Canada Labour Relations Board that the employees of residential schools
were employees of the Crown. As for the overwhelming evidence that the Church
in fact had the daily management and control of the school, including the
hiring, firing and supervision of staff, Esson J.A. concluded that this did not
matter, since the Church official in charge, Reverend Joblin, was the agent of
Canada in providing supervision and management of what were in fact the
Despite these assertions, the incontrovertible reality is that the
Church played a significant role in the running of the school. It hired, fired
and supervised the employees. It did so for the government of Canada, but also
for its own end of promoting Christian education to Aboriginal children. The
trial judge’s conclusion that the Church shared a degree of control of the
situation that gave rise to the wrong is not negated by the argument that as a
matter of law Canada retained residual control, nor by formalistic arguments
that the Church was only the agent of Canada. Canada had an important role,
to be sure, which the trial judge recognized in holding it vicariously liable
for 75 percent of the loss. But that does not negate the Church’s role and the
vicarious liability it created.
The Court of Appeal’s second reason for not holding the Church
vicariously liable is that Plint’s employment as dormitory supervisor fell
outside the only area in which the Church was mandated to make decisions — the
provision of a Christian education. Again, this argument flies in the face of
reality. The Church in fact ran the dormitory, as well as other parts of the
school. Whether or not that fell within some formal definition of its objects
The third reason, and the one that seems to drive the decision of the
Court of Appeal on the Church’s vicarious liability, is discomfort with the
idea that two defendants can be vicariously liable for the same conduct.
This concern, however, may be misplaced. There is much to support the
view of P. S. Atiyah in Vicarious Liability in the Law of Torts (1967),
that “[t]here is, of course, no reason why two employers should not jointly
employ a servant, and this would normally be the case with the employees of a
partnership. Here the servant is the servant of each partner and of all
jointly, and they are all jointly and severally liable for the servant’s
torts”: p. 149. Thus, joint vicarious liability is acceptable where there is a
In this case, the trial judge specifically found a partnership between
Canada and the Church, as opposed to finding that each acted independently of
the other. No compelling jurisprudential reason has been adduced to justify
limiting vicarious liability to only one employer, where an employee is
employed by a partnership. Indeed, if an employer with de facto control
over an employee is not liable because of an arbitrary rule requiring only one
employer for vicarious liability, this would undermine the principles of fair
compensation and deterrence. I conclude that the Church should be found
jointly vicariously liable with Canada for the assaults, contrary to the
conclusions of the Court of Appeal.
Doctrine of Charitable Immunity
The Court of Appeal went on to find that in any event the Church would
be exempted from any liability on the basis of the doctrine of charitable
immunity. In effect, the Court of Appeal created a limited status-based
exemption from liability for non-profit organizations. It stated that in a
situation where “the government is liable and in which the non-profit
charitable organization is not at fault and, if it can be said to have
introduced the risk at all, did so to a lesser degree than government, no liability
should be imposed upon the organization” (para. 48).
This conclusion rests on a misapprehension of the principles governing
vicarious liability and more particularly, the decisions of this Court in Bazley
and Jacobi v. Griffiths,  2 S.C.R. 570. It seeks to ground
itself in the discussion in Bazley of risk allocation, namely the
argument that as between the enterprise that introduces the risk which produces
the harm and the victim, it may be fair to require the enterprise to bear the
loss, provided there is a sufficient connection between the enterprise and the
harm. The Court of Appeal then extends this observation to reason that it is
the party best able to bear the loss that should be liable, provided it bears
more responsibility than a party less able to pay. Reasoning that the
government of Canada is more at fault and better able to bear the loss than the
Church, a non-profit organization, it concludes that the Church should not be
liable and that Canada alone should bear the loss. The result is to convert a
policy observation in Bazley into a free-standing legal test that
dictates that non-profit organizations should be free from liability for wrongs
committed by their employees, provided they are less at fault than a party better
able to bear the loss.
This class-based exemption finds support neither in principle nor in the
jurisprudence. It ignores the other concerns raised in Bazley that led
the Court to reject a class-based exemption from vicarious liability. First,
exempting non-profit organizations when government is present would not
motivate such organizations to take precautions to screen their employees and
protect children from sexual abuse. The presence of government does not
guarantee the safety of children, particularly where, as in this case, the
non-profit organization has day-to-day management of the institution.
Second, the Church in this case was not working with volunteers and in
fact was running a residential school with employees. Thus, arguments that it
was less able to supervise its employees’ actions are inapplicable; the Church
clearly supervised its employees’ work and actions and arguably was best placed
to do so. The Church enhanced the risk it had introduced by placing Mr. Barney
in the care of Plint, whose activities the Church managed.
The proposed charitable exemption is problematic on yet other grounds.
It raises the difficulty that a host of organizations may claim to be
non-profit, some of which the law might not wish to favour with an exemption.
Indeed, the government itself may be considered a non-profit institution. And
it suggests, contrary to legal principle, that lesser responsibility should be
converted to no liability, violating the precept that the judge-made common law
must proceed incrementally: R. v. Salituro,  3 S.C.R. 654, at p.
One may sympathize with the situation of the Church, which generally
acts with laudable motives and now finds itself facing large claims for wrongs
committed in its institutions many years ago. However, sympathy does not
permit courts to grant exemptions from liability imposed by settled legal
principle. I conclude that the Court of Appeal erred in exempting the Church
from liability on the ground of charitable immunity.
The trial judge held that Canada was under a non-delegable statutory
duty to ensure the safety and welfare of the students at the school, under ss.
113 and 114 of the Indian Act (see Appendix).
The trial judge found that Canada was bound by a non-delegable duty.
The Court of Appeal did not discuss this issue, concluding that the trial
judge’s conclusions on vicarious liability made it moot. On this appeal,
Canada asks us to set aside the finding of the trial judge on this point.
Two key questions surround the issue of non-delegable duty: first, is
there a non-delegable statutory duty, and second, was it breached? I conclude
that no non-delegable statutory duty can be inferred from the language of the
statute. This makes it unnecessary to consider issues related to how such a
duty can be breached and whether it can be imposed where vicarious liability
has been found.
The inquiry into whether a non-delegable statutory duty exists in a
particular case begins with the words of the statute. The analysis must
determine whether the statute clearly places Canada under a non-delegable duty
to ensure that students are kept safe while at school: see E.D.G. v. Hammer,
 2 S.C.R. 459, 2003 SCC 52.
Section 113 of the Indian Act states that the “Governor in
Council may authorize the Minister . . . (a) to
establish, operate and maintain schools for Indian children”. Section 114 goes
on to provide that “[t]he Minister may (a) provide for and make
regulations with respect to standards for buildings, equipment, teaching,
education, inspection and discipline in connection with schools . . .
(c) enter into agreements with religious organizations for the support
and maintenance of children who are being educated in schools operated by those
The text of ss. 113 and 114 does not support the inference of a
mandatory non-delegable duty. First, it uses the permissive term “may”, as
opposed to the directive term “shall”, limiting the possibility of finding an
obligation as strong as a duty. Second, the power of the government to enter
into agreements with religious organizations for the care and education of Indian
children suggests that the duty is eminently delegable and was contracted out
of by the government. There is no language in the statute that replicates the
clear language found in Lewis (Guardian ad litem of) v. British Columbia,
 3 S.C.R. 1145, where a non-delegable duty was found. Here one may
state, as the Court did in E.D.G., that none of “the general
duties gives school boards full responsibility for students’ welfare while on
school premises, in the way that the statutes in Lewis gave the Ministry
full responsibility for overseeing maintenance projects and for ensuring that
workers exercised reasonable care” (para. 20). Other provisions of the Act do
not assist. The Indian Act falls far short of creating a mandatory duty
to ensure the health and safety of children in residential schools.
The Church raises a number of arguments in response. First, it argues
that the pervasive control granted by Parliament over every aspect of Indians’
lives, including their definition and registration, jurisdiction over reserves
and jurisdiction over mentally incompetent Indians, justifies finding a
non-delegable statutory duty. However, arguments based on general obligations
outside the strict language of the statute and the residential school setting
are not persuasive. They risk encroaching on other grounds of liability such
as breach of fiduciary duty and negligence. Unless a non-delegable statutory
duty is based on the language of the statute, the boundaries between the
various grounds of liability become meaningless.
Second, the Church argues that the regulations enacted by the government
pursuant to s. 114(a) required the principal of AIRS to maintain
standards acceptable to the Superintendent of Indian Affairs for Canada with
respect to all aspects of the students’ life at AIRS, including safety,
counselling, guidance, and home and school relationships. In addition, the
regulations mandated that “[e]very school shall be subject to inspection by
such officials of the Government of Canada and by such other persons as the
Superintendent may authorize”: Indian Residential School Regulations,
1953, Reg. 14. These and other regulations granted Canada the power to
set standards for the operation of the school and inspect to see that these
standards were met. But they fall short of establishing a mandatory
non-delegable duty to ensure the students’ safety and welfare. Indeed, they
seem to presuppose delegation of Canada’s duties.
Third, the Church argues that by forcing Aboriginal children to attend
designated residential schools that maintained total control over those
children (ss. 115 and 117 of the Indian Act), Canada acquired a duty to
protect the interests of those children. While emotionally compelling, this
argument too falls short of establishing a non-delegable statutory duty at
Taken together, the statutory language of these provisions falls short
of imposing the broad statutory duty of care to protect the safety and welfare
of the children.
I conclude that the trial judge erred in finding a non-delegable
statutory duty on Canada in this case.
2.5 Fiduciary Duty
Neither the trial judge nor the Court of Appeal found breach of
fiduciary duty. The appellant, Mr. Barney, asks that we reverse this decision.
A fiduciary duty is a trust-like duty, involving duties of loyalty and
an obligation to act in a disinterested manner that puts the recipient’s
interest ahead of all other interests: K.L.B. v. British Columbia,
 2 S.C.R. 403, 2003 SCC 51, at para. 49.
The argument for breach of fiduciary duty is presented on two different
bases: one individual, one collective.
The first argument, put on an individual basis, is that the government
of Canada and the Church occupied a trust-like relationship with attendant
trust-like duties with respect to Mr. Barney and other students at the
school. As such, it was required to put their interests first and avoid
disloyalty in its conduct toward them.
Assuming such a duty did exist, the trial judge found that it was not
breached in this case. He specifically found that neither the Church nor
Canada were dishonest or intentionally disloyal. These findings of fact have
not been negated. It follows that breach of fiduciary duty toward Mr. Barney
and his schoolmates has not been established.
Beneath this specific argument, a second broader argument focussing on
Aboriginal children collectively can be discerned. This is the argument that
the system of residential schools robbed Indian children of their communities,
culture and support and placed them in environments of abuse. This, it is
argued, amounted to dishonest and disloyal conduct that violated the
government’s fiduciary duty to Canada’s Aboriginal peoples.
This argument cannot be resolved on this appeal. It was not raised
below, other than as contextual background to the circumstances and events at
the school Mr. Barney attended, AIRS. It was pursued only at this level, and
then mainly by interveners. In support of their argument, they submitted
studies and writings, none of which were proved in evidence in the courts below
and the historic and scientific validity of which the respondents have had no
opportunity to challenge. In these circumstances, it would be unfair to rely
on this material and inappropriate to deal with the larger argument.
We agree with the courts below that the argument on fiduciary duty
presented in this case cannot succeed.
Having found the Church and Canada vicariously liable (and Canada liable
for breach of non-delegable duty), the trial judge found Canada to have been 75
percent at fault and the Church 25 percent at fault. Since he found them
jointly and severally liable, the parties may recover full damages against
either or both of them. However, the issue remains whether either of the
parties to the joint enterprise that led to the loss is entitled to be
completely or partially indemnified by the other.
The trial judge examined the relationship between the parties and
concluded that Canada had not agreed to generally indemnify the Church for loss
incurred in running the school. He then considered the allocation of fault
between the two. He apportioned the loss 75 percent to Canada and 25 percent
to the Church. In doing so, he noted that Canada had the final decision
regarding the employment of a principal and control of finances, thus
effectively controlling the school. He concluded that as the “more senior of
the two partners” in the joint enterprise, Canada should bear the major portion
of the loss (2001 decision, at para. 324).
Canada argues that this conclusion runs counter to the British Columbia Negligence
Act, R.S.B.C. 1996, c. 333, which provides that “if . . . it is
not possible to establish different degrees of fault, the liability must be
apportioned equally” (s. 1(2)). Canada argues that vicarious liability is not
predicated on fault, and therefore liability and apportionment of damages must
be divided equally, not 75-25 as the trial judge held.
It remains an open question whether the term “fault” in the Negligence
Act includes vicarious liability. Fault has been held not to include
intentional torts and torts other than negligence: e.g., Chernesky v.
Armadale Publishers Ltd.,  6 W.W.R. 162 (Sask. C.A.); Funnell v.
C.P.R.,  2 O.R. 325 (H.C.). Other cases hold the contrary: Bell
Canada v. Cope (Sarnia) Ltd. (1980), 11 C.C.L.T. 170 (Ont. H.C.); Gerling
Global General Insurance Co. v. Siskind, Cromarty, Ivey & Dowler
(2004), 12 C.C.L.I. (4th) 278 (Ont. S.C.J.). However, it is not necessary to
resolve this dispute. If vicarious liability amounts to “fault” under the Negligence
Act, the trial judge’s conclusion that Canada was 75 percent at fault would
amount to a finding that fault could be apportioned, with the result that s.
1(2) would not apply to impose an equal allocation. On the other hand, if
vicarious liability is not “fault” under the Act, then the Act does not apply.
In this case, liability may be assigned at common law, with the same result.
In these circumstances, the Church argues that the common law of
contribution should apply. This Court in Bow Valley Husky (Bermuda) Ltd. v.
Saint John Shipbuilding Ltd.,  3 S.C.R. 1210, questioned whether the
common law rule against contribution was absolute. It held that a common law
right of contribution between tortfeasors may exist, except for intentional
torts or malicious motivation (para. 101). Vicarious liability is not founded
on intent or maliciousness. The Church goes on to argue that this is an
appropriate case for extending the doctrine of contribution to joint, faultless
tortfeasors to prevent the unjust enrichment of Canada, due to the Church’s
limited control over the operation at AIRS.
This raises the question of whether unequal apportionment of
responsibility is appropriate in cases of vicarious liability. The conflicting
views on whether vicarious liability attributes any fault or blame on the
wrongdoer are summarized in Bluebird Cabs Ltd. v. Guardian Insurance Co. of
Canada (1999), 173 D.L.R. (4th) 318 (B.C.C.A.), at paras. 13-14. The most
compelling view is that while vicarious liability is a no-fault offence in the
sense that the employer need not have participated in or even have authorized
the employee’s particular act of wrongdoing, in another sense it implies fault.
As D. N. Husak states, “no defendant who is held vicariously liable is selected
randomly; the principles used to identify this defendant are not arbitrary.
Vicarious liability is imposed on someone who was in a position to have
supervised and thus to have prevented the occurrence of the harm”: “Varieties
of Strict Liability” (1995), 8 Can. J.L. & Jur. 189, at p. 215. It
follows that the degree of fault may vary depending on the level of
supervision. Parties may be more or less vicariously liable for an offence,
depending on their level of supervision and direct contact.
The trial judge’s reasoning suggests that he applied this analysis to
conclude that one of the parties, Canada, was “more senior” and had more
control (2001 decision, at para. 324). He reasoned that when an employee has
two or more employers, it is more likely than not that one exercises more
control or plays a more important role than the other. The damage award, he
concluded, should reflect that. It is true that at various places the trial
judge referred to the “partnership” (1998 decision, at paras. 99 and 119), the
“joint enterprise” (at para. 107), and “join[t] control” (at para. 114).
However, I cannot accept Canada’s argument that the trial judge found no
hierarchical relationship between Church and Crown. He found the relationship
between Canada and the Church was not that of principal-agent or
employer-employee. This does not exclude one party to the joint enterprise
being more senior or exercising more control. In these circumstances an
unequal apportionment of responsibility is appropriate.
Here the trial judge found that Canada was in a better position than the
Church to supervise the situation and prevent the loss. That finding was
grounded in the evidence and I would not interfere with it.
A final question arises. The trial judge made the allocation on the
basis that Canada was both vicariously liable and liable under a non-delegable
statutory duty. I conclude that the latter basis of liability was not
available. Should this change the allocation of loss as between Canada and the
Church? Logic suggests it should not. The basis for assigning greater responsibility
to Canada was its greater control over the enterprise. The assessment is not
affected by finding there was no non-delegable duty under the statute.
I would confirm that damages should be apportioned 75 percent to Canada
and 25 percent to the Church.
The Effect of Prior Abuse
The calculation of damages for sexual assault to Mr. Barney is
complicated by two other sources of trauma: (1) trauma suffered in his home
before he came to AIRS; and (2) trauma for non-sexual abuse and deprivation at
AIRS that was statute barred. In reality, all these sources of trauma fused
with subsequent experiences to create the problems that have beset Mr. Barney
all his life. Untangling the different sources of damage and loss may be nigh
impossible. Yet the law requires that it be done, since at law a plaintiff is
entitled only to be compensated for loss caused by the actionable wrong.
It is the “essential purpose and most basic principle of tort law” that the
plaintiff be placed in the position he or she would have been in had the tort
not been committed: Athey v. Leonati,  3 S.C.R. 458, at para. 32.
The trial judge followed this principle and sought to exclude damages
relating to trauma suffered by Mr. Barney before coming to AIRS and
statute-barred wrongs. In his view, the plaintiff’s family background, his
institutionalization at AIRS and the non-sexual traumas he suffered, fell to be
considered as factors inherent in his position, distinct from the sexual
assaults. The trial judge clearly concluded that Mr. Barney’s family life
prior to AIRS, as well as other experiences at AIRS, made it likely that he
would have suffered serious psychological difficulties even if the sexual abuse
had never occurred.
Mr. Barney submits that his situation prior to entering the school and
other traumas suffered while at the school must be considered in assessing
damages, and that the trial judge erred in not doing so. He also argues that
the principle of ex turpi causa non oritur actio (a person cannot profit
from his own wrong) prevents the respondents from claiming that some of his
problems stem not from the sexual assaults he suffered but from other
statute-barred wrongs he suffered while at the school. These submissions
indirectly raise some of the same generalized complaints against the
residential school policy as a whole as are raised with respect to breach of
For the reasons that follow, I am not persuaded that the trial judge
erred in proceeding as he did.
It is important to distinguish between causation as the source of the
loss and the rules of damage assessment in tort. The rules of
causation consider generally whether “but for” the defendant’s acts, the
plaintiff’s damages would have been incurred on a balance of probabilities.
Even though there may be several tortious and non-tortious causes of injury, so
long as the defendant’s act is a cause of the plaintiff’s damage, the defendant
is fully liable for that damage. The rules of damages then consider what the
original position of the plaintiff would have been. The governing principle is
that the defendant need not put the plaintiff in a better position than his original
position and should not compensate the plaintiff for any damages he would have
suffered anyway: Athey. Mr. Barney’s submissions that injury from
traumas other than the sexual assault should not be excluded amount to the
contention that once a tortious act has been found to be a material cause of
injury, the defendant becomes liable for all damages complained of after,
whether or not the defendant was responsible for those damages.
At the same time, the defendant takes his victim as he finds him
— the thin skull rule. Here the victim suffered trauma before coming to AIRS.
The question then becomes: What was the effect of the sexual assault on him, in
his already damaged condition? The damages are damages caused by the sexual
assaults, not the prior condition. However, it is necessary to consider the
prior condition to determine what loss was caused by the assaults. Therefore,
to the extent that the evidence shows that the effect of the sexual assaults
would have been greater because of his pre-existing injury, that pre-existing
condition can be taken into account in assessing damages.
Where a second wrongful act or contributory negligence of the plaintiff
occurs after or along with the first wrongful act, yet another scenario,
sometimes called the “crumbling skull” scenario, may arise. Each tortfeasor is
entitled to have the consequences of the acts of the other tortfeasor taken
into account. The defendant must compensate for the damages it actually caused
but need not compensate for the debilitating effects of the other wrongful act
that would have occurred anyway. This means that the damages of the tortfeasor
may be reduced by reason of other contributing causes: Athey, at paras.
All these scenarios flow from the basic principle that damages must seek
to put the plaintiff in the position he or she would have been in but for the
tort for which the defendant is liable.
The trial judge correctly apprehended the applicable legal principles.
He recognized the “daunting task” of untangling multiple interlocking factors
and confining damages to only those arising from the actionable torts, the
sexual assaults (2001 decision, at para. 365). He tried his best to award fair
damages, taking all this into account. He recognized the thin skull principle,
but in the absence of evidence that Mr. Barney’s family difficulties prior
to coming to AIRS had exacerbated the damage he suffered from the sexual
assaults he sustained at AIRS, the trial judge had no choice but to attempt to
isolate those traumas. Similarly, there was no legal basis upon which he could
allow damages suffered as a result of statute-barred wrongs committed at AIRS,
like the beatings, to increase the award of damages.
More broadly, Mr. Barney relies on the maxim that none should profit
from his own wrong, ex turpi causa non oritur actio, to argue that the
respondents should not be enriched by their improper care of him. He argues
that reducing his damages award because of the harm caused by placing
Aboriginal children in residential schools allows the Church and Canada to
profit from their own immoral and illegal conduct.
This argument cannot succeed, notwithstanding its instinctive appeal.
First, it is not correct to view the respondents’ case as an attempt to profit
from immoral and illegal conduct by reducing damages. The amount of damages is
limited by loss caused by the actionable torts, in this case sexual assault.
Not awarding damages for loss caused by other factors does not “reduce”
damages. On the contrary, to award damages for such loss would be to
“increase” them beyond what the law allows. Thus it cannot be said that the
respondents are profiting from their wrong.
Second, the maxim ex turpi causa non oritur actio cannot be
applied to evade legal limits or undermine the legal system. Applying it to
permit damages to be awarded for wrongful acts that are subject to limitation
periods that have expired would subvert the legislation and compensate for
torts that have been alleged but not proven. It would be to override
legislative intent and fix liability in the absence of legal proof.
Third, even if these difficulties could be overcome, ex turpi
causa non oritur actio should be applied cautiously, where it is clearly
mandated: Hall v. Hebert,  2 S.C.R. 159. Compensation for the
impact of attending residential schools is fraught with controversy and
difficulty. Here, as for the broad claim for collective breach of fiduciary
duty, the necessary record to permit consideration of past policy wrongs is
I conclude that Mr. Barney’s contention that the trial judge erred in
failing to properly consider wrongs other than the actionable sexual assaults
in assessing damages cannot succeed.
and Aggravated Damages: Quantum
The trial judge awarded Mr. Barney $125,000 in general damages, plus
$20,000 aggravated damages. Mr. Barney argues that these amounts should be
increased to $300,000 having regard to the awards in other cases, exacerbating
factors and non-sexual brutalization suffered by him while at AIRS.
This ground of appeal cannot succeed. The trial judge considered the
correct factors in arriving at the damages award. He emphasized the nature and
frequency of the assaults and their dreadful physiological and psychological
effect on the victim. He referred to numerous decisions of a similar nature,
in order to arrive at a fair figure. No basis for interfering with his award
of general and aggravated damages has been made out.
The trial judge awarded punitive damages only against Plint. The
appellant asks for $25,000 of punitive damages to be awarded against Canada as
No compelling reason exists to disturb the trial judge’s award. Punitive
damages are awarded against a defendant only in exceptional circumstances for
“high‑handed, malicious, arbitrary or highly reprehensible misconduct
that departs to a marked degree from ordinary standards of decent behaviour”: Whiten
v. Pilot Insurance Co.,  1 S.C.R. 595, 2002 SCC 18, at para. 94. The
trial judge made no finding that Canada’s behaviour in this case met any of
those thresholds. He correctly stated that punitive damages cannot be awarded
in the absence of reprehensible conduct specifically referable to the
employer. While he found the Church liable on the basis of vicarious liability
and Canada liable vicariously and on the basis of a non-delegable statutory
duty, this was by virtue of the relationship between the parties and Plint, not
because of any specific misconduct.
I conclude that the contention that the punitive damage award should
include Canada should be rejected.
of Future Earning Opportunity
The trial judge did not order any damages for loss of future earning
ability. The Court of Appeal allowed an award of $20,000. The appellant is
now asking this Court to raise the award to $240,000.
The Court of Appeal held that “the trial judge overlooked the reality
that [Mr. Barney’s] psychological injury would, at least for a period of time
in the future, foreclose for him some occupations that might otherwise be
available” (para. 221). The trial judge had found that Mr. Barney was likely
to have become a logger in any event, as that was the occupation of both of his
brothers. The trial judge had also found that Mr. Barney was disabled from
working as a logger for reasons that had nothing to do with the sexual assaults
(2001 decision, at para. 527). Finally, the trial judge had found that Mr.
Barney did not have the intellectual capacity to pursue vocational or
retraining programs “save for the briefest and most practically oriented”
Canada does not contest the award for future loss of earnings by the
Court of Appeal. However, Canada argues that a detailed tabular approach is
not appropriate on the evidence here.
I am satisfied that no evidentiary record exists to specifically
quantify any future loss of earnings and that the Court of Appeal, noting the
inadequacy of the evidentiary record on this point, was correct to award a
I conclude that the Court of Appeal erred in finding that the
Church was not vicariously liable for the sexual abuse to Mr. Barney. The
Court of Appeal also misapplied Bazley to find the Church immune from
liability. The trial judge erred in finding a non-delegable statutory duty on
the terms of the Indian Act. The trial judge correctly apportioned the
damages unequally between the Church and Canada. No basis has been established
for finding negligence, breach of fiduciary duty or for reassessing the damage
awards in this case.
The appeal of Mr. Barney is dismissed. The appeal of Canada is allowed
in part. The judgment of the trial judge on the issues of joint vicarious
liability against the Church and Canada, and assessment and apportionment of
damages, is restored. The judgment of the Court of Appeal on the issue of
charitable immunity is set aside. The Court of Appeal’s award to Mr. Barney
for loss of future earning opportunity is upheld. In the circumstances, I
would make no order as to costs, leaving each party to bear its own costs.
S.C. 1951, c. 29
113. The Governor in Council may
authorize the Minister, in accordance with this Act,
(a) to establish, operate and
maintain schools for Indian children,
(b) to enter into agreements on behalf of His Majesty for
the education in accordance with this Act of Indian children, with
(i) the government of a province,
(ii) the council of the Northwest Territories,
(iii) the council of the Yukon Territory,
(iv) a public or separate school board, and
(v) a religious or charitable organization.
114. The Minister may
(a) provide for and make regulations with respect to
standards for buildings, equipment, teaching, education, inspection and
discipline in connection with schools,
(b) provide for the transportation of
children to and from school,
(c) enter into agreements with religious organizations for
the support and maintenance of children who are being educated in schools
operated by those organizations, and
(d) apply the whole or any part of moneys that would
otherwise be payable to or on behalf of a child who is attending a residential
school to the maintenance of that child at that school.
115. (1) Subject to section one hundred and
sixteen, every Indian child who has attained the age of seven years shall
(2) The Minister may
(a) permit an Indian who has attained the age of six years
to attend school,
(b) require an Indian who becomes sixteen years of age
during the school term to continue to attend school until the end of that term,
(c) require an Indian who becomes sixteen years of age to
attend school for such further period as the Minister considers advisable, but
no Indian shall be required to attend school after he becomes eighteen years of
117. Every Indian child who is required
to attend school shall attend such school as the Minister may designate, but no
child whose parent is a Protestant shall be assigned to a school conducted
under Roman Catholic auspices and no child whose parent is a Roman Catholic
shall be assigned to a school conducted under Protestant auspices, except by
written direction of the parent.
Residential School Regulations
. . .
2. “Superintendent” means the Superintendent
of Education, Indian Affairs Branch, Department of Citizenship and Immigration.
13. The principal of every school shall
maintain standards acceptable to the Superintendent in respect of,
(a) the adequacy in numbers and qualifications of the school staff;
(b) the number of pupils served by the school;
(c) diet and all phases of food preparation and service;
(d) clothing and bedding;
(e) dormitory accommodation;
(f) heating and ventilation;
(g) cleanliness, sanitation, water supply and laundry service;
(i) interior decoration;
(j) safety precautions;
(k) classroom instruction;
(l) recreational activities;
(m) counselling and guidance;
(n) home and school relationships;
(o) the maintenance of records; and
(p) the accounting for funds, stock and equipment.
14. Every school shall be subject to
inspection by such officials of the Government of Canada and by such other
persons as the Superintendent may authorize.
15. (1) The principal of every school
shall be responsible for,
(a) the maintenance and operation of the school buildings, grounds
(b) the assignment of duties to the staff and the supervision of the
(c) the preparation and dissemination of rules relating to the
functioning of the school;
(d) the provision and supervision of measures to ensure the health,
safety, welfare and educational progress of the pupils;
(h) the practice of fire drill not less than once a month.
Appeal of Frederick Leroy Barney dismissed. Appeal of Canada
allowed in part.
Solicitors for the appellant/respondent Frederick Leroy Barney and
for the respondents R.A.F., R.J.J., M.L.J. and M.W. (2): Hutchins
Grant & Associates, Vancouver; Diane Soroka, Barrister & Solicitor
Solicitor for the appellant/respondent Her Majesty the Queen in
Right of Canada, as represented by the Minister of Indian Affairs and Northern
Development: Attorney General of Canada, Vancouver.
Solicitors for the respondent the United Church of
Canada: Harper Grey Easton, Vancouver.
Solicitors for the respondent Patrick Dennis
Stewart: David Paterson Law Corporation, Surrey.
Solicitors for the intervener the Assembly of First
Nations: Pitblado, Winnipeg.
Solicitor for the interveners the Women’s Legal Education and Action
Fund, the Native Women’s Association of Canada and the Disabled Women’s Network
of Canada: Women’s Legal Education and Action Fund, Toronto.