Blackwater v. Plint, 2005 SCC 58, [2005] 3 SCR 3

                                                 SUPREME COURT OF CANADA

Between:

Frederick Leroy Barney

Appellant

and

Her Majesty The Queen in Right of Canada, as

represented by the Minister of Indian Affairs and

Northern Development, and the United Church of Canada

Respondents

And between:

Her Majesty The Queen in Right of Canada, as represented

by the Minister of Indian Affairs and Northern Development

Appellant

and

United Church of Canada, R.A.F., R.J.J., M.L.J., M.W. (2),

Frederick Leroy Barney and Patrick Dennis Stewart

Respondents

‑ and ‑

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

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

Blackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC 58

Frederick Leroy Barney                                                                                  Appellant

v.

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

and

Her Majesty The Queen in Right of Canada, as represented

by the Minister of Indian Affairs and Northern Development                      Appellant

v.

United Church of Canada, R.A.F., R.J.J., M.L.J., M.W. (2),

Frederick Leroy Barney and Patrick Dennis Stewart                               Respondents

and

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. Plint

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. [19] [22] [31‑32] [41] [44]

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] [98]

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] [75] [82] [85] [87] [98]

Cases Cited

Referred to:  Bazley v. Curry, [1999] 2 S.C.R. 534; Jacobi v. Griffiths, [1999] 2 S.C.R. 570; R. v. Salituro, [1991] 3 S.C.R. 654; E.D.G. v. Hammer, [2003] 2 S.C.R. 459, 2003 SCC 52; Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145; K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51; Chernesky v. Armadale Publishers Ltd., [1974] 6 W.W.R. 162; Funnell v. C.P.R., [1964] 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., [1997] 3 S.C.R. 1210; Bluebird Cabs Ltd. v. Guardian Insurance Co. of Canada (1999), 173 D.L.R. (4th) 318; Athey v. Leonati, [1996] 3 S.C.R. 458; Hall v. Hebert, [1993] 2 S.C.R. 159; Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18.

Statutes and Regulations Cited

Indian Act, S.C. 1951, c. 29, ss. 113, 114, 115, 117.

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).

Authors Cited

Atiyah, P. S.  Vicarious Liability in the Law of Torts.  London:  Butterworths, 1967.

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, [2004] 3 W.W.R. 217, [2003] 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, [1998] 4 C.N.L.R. 13, [1999] 1 W.W.R. 389, [1998] B.C.J. No. 1320 (QL) (sub nom. W.R.B. v. Plint) and (2001), 93 B.C.L.R. (3d) 228, [2001] 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 Northern Development.

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 —

1.  Introduction

1                                   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 this appeal.

2                                   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.

3                                   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”)).

4                                   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.

5                                   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.

6                                   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 following issues:

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 not negligent?

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 opportunity?

7                                   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 AIRS; and

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 principles.

8                                   The two appeals, considered together, raise the following legal issues, which I propose to deal with in order:

1.    Negligence

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

9                                   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.

10                               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.

2.  Analysis

2.1  Negligence

11                               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 their employees.

12                               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).

13                               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? 

14                               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.

15                               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.

16                               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.

17                               Mr. Barney’s appeal on this point must be dismissed.

2.2  Vicarious Liability 

18                               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 liability.

19                               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.

20                               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, [1999] 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.

21                               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.

22                               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.

23                               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.

24                               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. 

25                               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.

26                               Fourth, the Church managed a pension plan for lay employees, though the employer’s contributions were paid by Canada: 1998 decision, at para. 69. 

27                               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. 

28                               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. 

29                               Seventh, the Church inspected the school annually and provided the Christian education at the school: 1998 decision, at paras. 70-71.

30                               Finally, the Church appointed an advisory committee to ensure that Church policies were being carried out at the school: 1998 decision, at para. 64. 

31                               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.

32                               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 Church.

33                               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 government’s schools.

34                               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.

35                               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 is irrelevant.

36                               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.

37                               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 partnership.

38                               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.

2.3  The Doctrine of Charitable Immunity

39                               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).

40                               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, [1999] 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.  

41                               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. 

42                               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. 

43                               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, [1991] 3 S.C.R. 654, at p. 666.

44                               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.

2.4  Non-Delegable Statutory Duty

45                               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).

46                               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. 

47                               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.

48                               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, [2003] 2 S.C.R. 459, 2003 SCC 52. 

49                               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 organizations”.

50                               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, [1997] 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.

51                               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.

52                               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.

53                               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 law. 

54                               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.

55                               I conclude that the trial judge erred in finding a non-delegable statutory duty on Canada in this case.

2.5    Fiduciary Duty

56                               Neither the trial judge nor the Court of Appeal found breach of fiduciary duty.  The appellant, Mr. Barney, asks that we reverse this decision.

57                               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, [2003] 2 S.C.R. 403, 2003 SCC 51, at para. 49.

58                               The argument for breach of fiduciary duty is presented on two different bases:  one individual, one collective.

59                               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.

60                               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.

61                               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.

62                               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.

63                               We agree with the courts below that the argument on fiduciary duty presented in this case cannot succeed.

2.6  Apportionment of Damages

64                               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.

65                               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).

66                               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.

67                               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., [1974] 6 W.W.R. 162 (Sask. C.A.); Funnell v. C.P.R., [1964] 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.

68                               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., [1997] 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.

69                               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.

70                               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.

71                               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.

72                               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.

73                               I would confirm that damages should be apportioned 75 percent to Canada and 25 percent to the Church.

2.7  Damages: The Effect of Prior Abuse

74                               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, [1996] 3 S.C.R. 458, at para. 32.

75                               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.

76                               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 fiduciary obligation.

77                               For the reasons that follow, I am not persuaded that the trial judge erred in proceeding as he did.

78                               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.

79                               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.

80                               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. 32-36.

81                               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.

82                               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.

83                               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.

84                               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.

85                               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.

86                               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, [1993] 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 lacking.

87                               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.

2.8 General and Aggravated Damages: Quantum

88                               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.

89                               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.

2.9 Punitive Damages

90                               The trial judge awarded punitive damages only against Plint.  The appellant asks for $25,000 of punitive damages to be awarded against Canada as well.

91                               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., [2002] 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.

92                               I conclude that the contention that the punitive damage award should include Canada should be rejected.

2.10 Loss of Future Earning Opportunity

93                               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.

94                               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” (para. 527).

95                               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.

96                               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 conventional amount.  

3.  Conclusion

97                               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.                                          

98                               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.

                                                           APPENDIX

Indian Act, 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 attend school.

(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, and

(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 age.

. . .

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.

Indian 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;

(h)   lighting;

(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 and equipment;

(b)   the assignment of duties to the staff and the supervision of the performance thereof;

(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 Inc., Vancouver.

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.