John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17
Roman Catholic Episcopal Corporation of
St. George’s Appellant
v.
John Doe (“a pseudonym”) and John Doe
(“a pseudonym”) Respondents
and between
John Doe (“a pseudonym”) and John Doe
(“a pseudonym”) Appellants on cross-appeal
v.
Roman Catholic Episcopal Corporation of
St. George’s Respondent on cross-appeal
and
Alphonsus Penney, Raymond Lahey, Roman
Catholic Episcopal Corporation of St. John’s,
James MacDonald, and the Roman Catholic Church Respondents on cross-appeal
and
Attorney General of Canada and Canadian
Conference of Catholic Bishops Interveners
Indexed as: John Doe v. Bennett
Neutral citation: 2004 SCC 17.
File No.: 29426.
2004: January 14; 2004: March 25.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie,
Arbour, LeBel, Deschamps and Fish JJ.
on appeal from the court of appeal for newfoundland and labrador
Torts — Intentional torts — Liability — Corporation
sole — Sexual abuse — Boys sexually abused by priest — Whether episcopal
corporation liable for priest’s sexual assault of boys — Whether corporation
sole’s activities and liability confined to matters pertaining to property.
Torts — Vicarious liability — Intentional torts — Sexual
abuse — Boys sexually abused by priest — Whether episcopal corporation
vicariously liable for priest’s sexual assault of boys.
Over a period of almost two decades, B, a Roman
Catholic priest in Newfoundland, sexually assaulted boys in his parishes.
The plaintiff-respondents sued the appellant episcopal corporation and
the Roman Catholic Church, among others. The trial judge found the
appellant vicariously liable but dismissed the claim against the Church. The
Court of Appeal upheld the dismissal of the action against the Church. The
majority found the appellant directly but not vicariously liable.
Held: The
appeal and cross-appeal should be dismissed.
The conclusion below that the appellant is directly
liable for the wrongs to the plaintiff-respondents resulting from its bishops’
failure to properly direct and discipline B is confirmed. The purpose for
which ecclesiastical corporations sole like the appellant are created is to
serve as a point of legal interface between the Roman Catholic Church and the
community at the diocesan level. To restrict the purpose of the corporation
sole to the acquisition, holding and administration of property is to capture
only a portion of the purpose it is intended to serve and to artificially
truncate its functions. The bishop is a corporation capable of suing and being
sued in all courts with respect to all matters, and has the power to hold
property and borrow money for all diocesan purposes. If the bishop is
negligent in the discharge of his duties, the corporation is directly liable,
because the office of bishop/archbishop, the enterprise of the diocese and the
episcopal corporation are legally synonymous.
The appellant is also vicariously liable for the
wrongs done to the plaintiff-respondents, as the evidence overwhelmingly
satisfies the tests affirmed in Bazley, Jacobi and K.L.B.
First, the relationship between the diocesan enterprise and B was sufficiently
close. Second, it is clear that the necessary connection between the employer-created
or enhanced risk and the wrong complained of is established. The bishop
provided B with the opportunity to abuse his power, B’s wrongful acts were
strongly related to the psychological intimacy inherent in his role as priest
and the bishop conferred an enormous degree of power on B relative to his
victims.
The record here is too weak to permit the Court to
responsibly embark on the important and difficult question of whether the Roman
Catholic Church can be held liable in a case such as this.
The plaintiff-respondents’ cross-appeal, asking that
this Court reconsider and assess the liability of all the defendants, was
brought “conditionally” and it was only to be pursued in the event that the
appellant’s appeal was allowed. Fairness requires that such representations
not be disregarded, particularly where other parties have relied on them, and
therefore the issues raised on the cross-appeal are not considered.
Cases Cited
Applied: Bazley
v. Curry, [1999] 2 S.C.R. 534; Jacobi v. Griffiths, [1999]
2 S.C.R. 570; K.L.B. v. British Columbia, [2003]
2 S.C.R. 403, 2003 SCC 51; referred to: McDonald v.
Mombourquette (1996), 152 N.S.R. (2d) 109, leave to appeal
refused, [1997] 2 S.C.R. xi; K. (W.) v. Pornbacher
(1997), 32 B.C.L.R. (3d) 360.
Statutes and Regulations Cited
Act to Incorporate the Roman
Catholic Bishop of St. George’s,
S.N. 1913, c. 12, ss. 1, 3, 5, 7.
Code of Canon Law (1983), Can. 528.
APPEAL and CROSS-APPEAL from a judgment of the
Newfoundland and Labrador Court of Appeal (2002), 218 D.L.R. (4th) 276,
215 Nfld. & P.E.I.R. 310, 20 C.C.E.L. (3d) 24, 644 A.P.R.
310, [2002] N.J. No. 218 (QL), 2002 NFCA 47, affirming in part a judgment
of the Supreme Court of Newfoundland, Trial Division (2000), 190 Nfld.
& P.E.I.R. 277, 1 C.C.L.T. (3d) 261, 576 A.P.R. 277,
[2000] N.J. No. 203 (QL). Appeal and cross-appeal dismissed.
Geoffrey D. E. Adair, Q.C., and Krista Springstead, for the
appellant/respondent on cross-appeal.
Gregory B. Stack, for the respondent/appellant on cross-appeal, John Doe.
Richard S. Rogers, for the respondent/appellant on cross-appeal, John Doe.
David G. L. Buffett, Q.C., for the respondents on the cross-appeal,
Alphonsus Penney, Raymond Lahey and James MacDonald.
James R. Adams, for the respondent on cross-appeal, the Roman Catholic Episcopal
Corporation of St. John’s.
No one appeared for the respondent on cross-appeal,
the Roman Catholic Church.
Anne M. Turley, for the intervener the Attorney General of Canada.
William J. Sammon, for the intervener the Canadian Conference of Catholic Bishops.
The judgment of the Court was delivered by
The Chief Justice —
I. Introduction
1
Over a period of almost two decades, Father Kevin Bennett, a Roman
Catholic priest in Newfoundland in the Diocese of St. George’s, sexually
assaulted boys in his parishes. Two successive bishops failed to take steps to
stop the abuse. Ultimately, in 1979, a victim revealed the abuse to the
Archbishop of the neighbouring diocese, St. John’s, who was also Metropolitan
of the broader ecclesiastical province. He referred the complaint to Bennett’s
Bishop but again nothing was done. The unnamed plaintiffs, 36 in number,
suffered greatly as a consequence of the abuse. Now adults, they remain deeply
wounded.
2
The plaintiff-respondents sued for the wrongs that had been done to
them. They sued Father Bennett; the Roman Catholic Episcopal Corporation of
St. George’s (“St. George’s”); the bishop of St. George’s at the time the
lawsuit was commenced, Raymond Lahey; the archbishop of St. John’s at the time
of the abuse, Alphonsus Penney; the archbishop of St. John’s at the time the
lawsuit was commenced, James MacDonald; the Roman Catholic Episcopal
Corporation of St. John’s (“St. John’s”); and the Roman Catholic Church.
Father Bennett’s liability is not at issue before this Court. The main issue is
the liability of St. George’s.
3
The trial judge found Bennett directly liable; St. George’s and Bishop
Lahey vicariously liable, and Archbishop Penney liable in negligence. He
dismissed the claims against Archbishop MacDonald, St. John’s and the Roman
Catholic Church ((2000), 190 Nfld. & P.E.I.R. 277).
4
The Court of Appeal set aside the findings of personal liability against
Archbishop Penney and Bishop Lahey, and upheld the dismissal of the action
against Archbishop MacDonald, St. John’s and the Roman Catholic Church. The
majority found St. George’s directly but not vicariously liable ((2002), 218
D.L.R. (4th) 276, 2002 NFCA 47).
5
St. George’s appealed the finding of direct negligence to this Court,
and argued in addition that the Roman Catholic Church was liable. The
plaintiff-respondents replied that St. George’s is not only directly, but also
vicariously liable for Bennett’s wrongs. The plaintiff-respondents also filed
a cross-appeal asserting the liability of Lahey, MacDonald, Penney, St. John’s
and the Roman Catholic Church. However, they also asserted that the
cross-appeal was conditional on the success of St. George’s appeal from liability
and need not be considered in the event St. George’s appeal was dismissed.
II. The Appeal
6
The main issue on the appeal is whether St. George’s is liable to the
plaintiff-respondents and if so, on what basis. St. George’s contends it is
neither directly nor vicariously liable; the plaintiff-respondents assert they
are liable on both grounds. St. George’s also argues that the Roman Catholic
Church is liable.
A. Direct Liability
7
All of the abuse took place in the diocese of St. George’s. A Roman
Catholic diocese is a territorial enterprise, composed of a number of parishes
and administered by a bishop or archbishop. Dioceses are constituted by the
Pope, who also appoints bishops and archbishops. A number of dioceses may form
an ecclesiastical province. It is common for legislation to incorporate bishops
and archbishops as episcopal corporations. I conclude that the episcopal
corporation is the secular arm of the bishop or archbishop for all purposes.
The office of bishop/archbishop, the enterprise of the diocese and the
episcopal corporation are legally synonymous.
8
The argument for direct liability of St. George’s is as follows:
(1) The bishops of St. George’s in charge of
Bennett (Bishops O’Reilly and McGrath successively) knew or ought to have known
that Bennett was abusing the plaintiff-respondents and negligently did nothing
to stop the assaults from continuing;
(2) The bishops (successively) constituted the
corporation sole of St. George’s under the relevant legislation and acted
on its behalf.
(3) Therefore St. George’s is directly liable for
these acts and omissions.
9
St. George’s concedes the first proposition (the negligence of Bishops
O’Reilly and McGrath) and does not seriously dispute the second. Its only
argument is that St. George’s is not liable for the Bishops’ negligence,
because the corporation sole’s activities and powers are confined to holding
property and do not extend to the placement, direction and discipline of priests.
10
The narrow issue is therefore whether the corporation sole’s activities
and liability are confined to matters pertaining to its property. The courts
below rejected this proposition. So would I. I base this conclusion on the
legislation creating the corporation sole and on its function or purpose.
11
The purpose for which ecclesiastical corporations sole like St. George’s
are created is to serve as a point of legal interface between the Roman
Catholic Church and the community at the diocesan level. The Church is at one
and the same time a spiritual presence in the community and a secular actor in
the community. The task of the corporation sole is to provide a bridge between
the two spheres for the diocese. On a secular level, the Church interacts with
members of the diocesan community in a host of ways. It carries on a variety
of religious, educational and social activities. It makes contracts with
employees. It transports parishioners. It sponsors charitable events. It
purchases and sells goods and property. To do these things, it requires a
legal personality. That personality is the corporation sole. To restrict the
purpose of the corporation sole to the acquisition, holding and administration
of property is to capture only a portion of the purpose it is intended to serve
and to artificially truncate its functions.
12
The role of the corporation sole as a legal interface between the Church
and the community is set forth in the legislation creating it, An Act to
Incorporate the Roman Catholic Bishop of St. George’s, S.N. 1913, c. 12.
The Act, quite simply, incorporates the office of bishop, in all its aspects.
It does not confine itself to the holding of property belonging to the diocese.
13
Section 1 of the Act states that “the Roman Catholic Bishops from time
to time of the Diocese of St. George’s . . . shall be a body corporate . . .
for the purpose of holding lands and property, personal or otherwise”.
However, the language of other sections makes it clear the Corporation’s powers
are not confined to property. Section 3 provides:
The Corporation shall have perpetual succession and a corporate
seal, with power to alter the same, and by the name of the Roman Catholic
Episcopal Corporation of St. George’s shall be capable in law of suing and
being sued, pleading and being impleaded in all Courts and places whatsoever,
and shall have power to take and to hold lands, and all other property
whatsoever for ecclesiastical, charitable and educational purposes and uses of
the Roman Catholic Church, and to lease, sell, convey and dispose of the
same. [Emphasis added.]
This section
permits the Corporation to be sued on all matters, not just those relating to
property.
14
Section 5 states the Corporation’s property is held “for charitable,
ecclesiastical and educational uses of the Roman Catholic Church”, indicating
legislative intent that the corporation sole should carry on and be responsible
for the wide panoply of Church activities in the diocese. Similarly, s. 7 gives
the Corporation the power “to borrow money for the purpose of the said
Diocese” (emphasis added), without restricting that purpose.
15
In sum, the bishop is a corporation capable of suing and being sued “in
all Courts” with respect to all matters, and has the power to hold property and
borrow money for all diocesan purposes. The corporation can fairly be
described as the temporal or secular arm of the bishop. The argument that only
the bishop’s acts relating to property are acts of the corporation must be
rejected. All temporal or secular actions of the bishop are those of the
corporation. This includes the direction, control and discipline of priests,
which are the responsibility of the bishop. If the bishop is negligent in the
discharge of these duties, the corporation is directly liable. Furthermore,
this liability remains with the corporation sole, as a continuing legal entity,
even when the bishop initially responsible moves from the diocese or retires
from his position.
16
I would confirm the conclusion below that the Roman Catholic Episcopal
Corporation of St. George’s is directly liable for the wrongs to the
plaintiff-respondents resulting from its bishops’ failure to properly direct
and discipline Father Bennett.
B. Vicarious Liability
17
The plaintiff-respondents also seek a finding that the Roman Catholic
Episcopal Corporation of St. George’s is vicariously liable for Father
Bennett’s assaults, as his employer. The doctrine of vicarious liability
imputes liability to the employer or principal of a tortfeasor, not on the
basis of the fault of the employer or principal, but on the ground that as the
person responsible for the activity or enterprise in question, the employer or
principal should be held responsible for loss to third parties that result from
the activity or enterprise.
18
The trial judge found St. George’s vicariously liable for the assaults
committed by Father Bennett. The majority of the Court of Appeal, per
Marshall J.A., reversed this finding, emphasizing that Bennett’s actions
violated the norms of the Church and the charitable, non-profit nature of the
diocese’s activities. The dissenting justice, Cameron J.A., held vicarious
liability to be established. In my view, the majority of the Newfoundland and
Labrador Court of Appeal erred on this point and the view of the dissent is to
be preferred.
19
This Court considered the application of the doctrine of vicarious
liability to the tort of assault of children in Bazley v. Curry, [1999]
2 S.C.R. 534, Jacobi v. Griffiths, [1999] 2 S.C.R. 570, and K.L.B. v.
British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51. The decisions
affirm the same test for vicarious liability.
20
In Bazley, the Court suggested that the imposition of
vicarious liability may usefully be approached in two steps. First, a court
should determine whether there are precedents which unambiguously determine
whether the case should attract vicarious liability. “If prior cases do not
clearly suggest a solution, the next step is to determine whether vicarious
liability should be imposed in light of the broader policy rationales behind
strict liability”: Bazley, at para. 15; Jacobi, at para. 31.
Vicarious liability is based on the rationale that the person who puts a risky
enterprise into the community may fairly be held responsible when those risks
emerge and cause loss or injury to members of the public. Effective
compensation is a goal. Deterrence is also a consideration. The hope is that
holding the employer or principal liable will encourage such persons to take
steps to reduce the risk of harm in the future. Plaintiffs must show that the
rationale behind the imposition of vicarious liability will be met on the facts
in two respects. First, the relationship between the tortfeasor and the person
against whom liability is sought must be sufficiently close. Second, the
wrongful act must be sufficiently connected to the conduct authorized by the
employer. This is necessary to ensure that the goals of fair and effective
compensation and deterrence of future harm are met: K.L.B., supra,
at para. 20.
21
In determining whether there is a sufficient connection in the case of
intentional torts, factors to be considered include, but are not limited to
the following (Bazley, supra, at para. 41):
(a) the opportunity that the enterprise afforded
the employee to abuse his or her power;
(b) the extent to which the wrongful act may have
furthered the employer’s aims (and hence be more likely to have been committed
by the employee);
(c) the extent to which the wrongful act was
related to friction, confrontation or intimacy inherent in the employer’s
enterprise;
(d) the extent of power conferred on the employee
in relation to the victim;
(e) the vulnerability of potential victims to
wrongful exercise of the employee’s power.
The employer’s
control over the employee’s activities is one indication of whether the
employee is acting on his or her employer’s behalf: K.L.B., supra,
at para. 22. At the heart of the inquiry lies the question of power and
control by the employer: both that exercised over and that granted to the
employee. Where this power and control can be identified, the imposition of
vicarious liability will compensate fairly and effectively.
22
In Bazley, supra, vicarious liability was imposed on a
non-profit association operating residential care facilities for children, in
an action brought by a former resident for sexual assault by a child care
counsellor. The Court unanimously rejected the argument that non-profit bodies
should be protected from tort liability in the public interest. The
relationship between the employer and employee was sufficiently close, while
the wrongful act was a manifestation of risks inherent in the employer’s
enterprise.
23
In the companion case, Jacobi, supra, the majority of the
Court found a non-profit Boys’ and Girls’ Club not vicariously liable for
sexual assaults committed by its employee, the program director, some of them
in the course of excursions relating to the children’s sports activities.
Applying the test set out in Bazley, supra, the majority found
the required connection between the employer’s enterprise and the wrong had not
been established. In the view of the majority, the facts established a much
weaker connection than in Bazley: the level of intimacy was much less;
the job did not require the employee to be alone with the child; the offence
occurred off-premises and outside working hours; and the employee had
established his own “bait” of home attractions. These facts, the majority
held, negated the required strong connection between the risks inherent in the
employer’s enterprise and the wrong. Whatever power Griffiths used, Binnie J.
wrote, it was not conferred by the Club, nor was it characteristic of the type
of enterprise the Club put into the community. A minority of three justices
found vicarious liability to be established, notwithstanding these differences.
24
In my respectful opinion, the majority of the Court of Appeal erred in
reading Jacobi as suggesting that its effect is that non-profit
employers should not be held vicariously liable for sexual assaults by their
employees. The unanimous opinion in Bazley, which also involved
a non-profit employer, and both the majority and dissenting opinions in Jacobi,
are all inconsistent with this conclusion. The majority reasons in Jacobi suggest
that non-profit status may sometimes negatively impact on the policy rationales
that underlie the imposition of vicarious liability; however, they do not state
that non-profit employers should not be held vicariously liable; nor do they
affirm the old doctrine of charitable immunity. In the result, the majority
held (at para. 78) that
“fairness” to these non-profit organizations is entirely compatible
with vicarious liability provided that a strong connection is
established between the enterprise risk and the sexual assault. [Emphasis in
original.]
The majority
in Jacobi grounds its conclusion firmly in the factors relevant to the
connection between the employer’s creation of risk and the wrong complained of
as expressed in Bazley, notably the absence of job-conferred power.
25
In K.L.B., the majority of the Court held that vicarious
liability should not be extended to the relationship between governments and
foster parents for assaults on the children in their care. The highly
independent manner in which foster parents discharge their duties meant that
the connection between them and the government was too weak for foster parents
to be reasonably perceived as acting on behalf of the government: K.L.B.,
supra, at para. 25. Therefore, the relationship between foster parents and
the government was not sufficiently close to ground imposition of vicarious
liability.
26
In the present case, the relevant precedents dealing with church-related
activities do not clearly determine the issue, although they tend to support
the imposition of vicarious liability on the episcopal corporation. In McDonald
v. Mombourquette (1996), 152 N.S.R. (2d) 109 (leave to appeal refused,
[1997] 2 S.C.R. xi), the Nova Scotia Court of Appeal reversed the trial judge’s
finding that the Roman Catholic & Episcopal Corporation of Antigonish was
vicariously liable for sexual assaults committed by a priest on children in the
parish. A key factor was that the priest had acted “totally contrary to the
religious tenets which he has sworn to uphold” (para. 47). In K. (W.) v.
Pornbacher (1997), 32 B.C.L.R. (3d) 360 (S.C.), the court declined to
follow Mombourquette and held the Catholic Church, through its Bishop of
Nelson, to be both negligent and vicariously liable for sexual assaults
committed by a priest. The trial judge emphasized the job-conferred power of a
priest over church youth. Although the case law does not provide a clear
answer, the facts of Pornbacher (as well as Mombourquette) more
closely resemble Bazley than Jacobi.
27
The relationship between the bishop and a priest in a diocese is not
only spiritual, but temporal. The priest takes a vow of obedience to the
bishop. The bishop exercises extensive control over the priest, including the
power of assignment, the power to remove the priest from his post and the power
to discipline him. It is akin to an employment relationship. The incidents of
control far exceed those characterizing the relationship between foster parents
and the government, discussed in K.L.B., and, as will become evident
below, the priest is reasonably perceived as an agent of the diocesan
enterprise. The relationship between the bishop and the priest is sufficiently
close. Applying the relevant test to the facts, it is also clear that the
necessary connection between the employer-created or enhanced risk and the
wrong complained of is established.
28
First, the bishop provided Bennett with the opportunity to abuse his
power. As noted by the trial judge, at para. 26, “the vast majority of all the
activities which [Bennett] organized and in which he was always accompanied by
boys, were activities which he organized and controlled in his capacity as
parish priest”. Canon 528 of the Code of Canon Law directs a parish
priest to “have a special care for the catholic education of children and young
people”, and involvement with children was clearly an expected role for a
parish priest. As priest, Bennett directed altar boys, led a parish band,
involved boys in renovation and construction projects, was active in the Boy
Scout troop, and engaged boys in various fundraising and parochial activities.
All of these opportunities came via his appointment and placement as parish
priest by the bishop.
29
Second, Bennett’s wrongful acts were strongly related to the
psychological intimacy inherent in his role as priest. As explained by Cameron
J.A., at para. 184: “The Church encourages psychological intimacy between a
priest and the members of the parish. A priest may not have to bath children
[as in Bazley] but he, like parents, teaches them right from wrong, he
represents God and they are to accept his instructions in spiritual matters.”
This psychological intimacy encourages victims’ submission to abuse and
increases the opportunity to abuse, partly by satisfying parents “that their
children [are] in good hands while in the care and control of their priest”
(trial decision, at para. 21). A church member’s personal identity is closely
intertwined with his or her faith and its institutional expression, which may
nurture trust in the institution’s hierarchy from a young age, granting it
considerable power.
30
Third, the bishop conferred an enormous degree of power on
Bennett relative to his victims. The power imbalance was intensified in St.
George’s diocese due to a number of factors. The parishes in which Bennett
worked were geographically isolated, impacting on the opportunities for, and
extent and frequency of, the sexual assaults and contributing to their
remaining unchecked for many years. The communities were entirely Roman
Catholic and the devoutly religious inhabitants placed the Church at the centre
of their daily lives. There were few other authority figures; the communities
lacked municipal government, diverse business activities, secular
organizations, police, courts or any other form of community leadership,
leaving that role entirely to the parish priest. The only schools were
denominational, and as such, were influenced by the priest, who served as the only
local representative of the distant school board.
31
Bennett had enormous stature because of his position as parish priest,
both to the boys and to their parents. The plaintiffs perceived him as a “god”
— quite logically given his centrality in the community and the disparity in
lifestyles between himself and his parishioners. As the school principal,
Kerry Dwyer, testified, “It was like having a celebrity in the community that
you had to treat properly. . . . [T]here were incidents where I found people
believed that the priest could turn you into a goat.” Or, as one victim
stated, when he asked his father if he should sleep over at Bennett’s house as
Bennett had requested, “my dad said of course, he’s the priest”. While Bennett
had a particularly forceful personality, the root of his power over his victims
lay in his role as a priest, conferred by the bishop. The trial judge summed
it up eloquently, at para. 28: “The awe in which Father Bennett was held by
the community at large contributed to his ability to control his victims and
thus to satisfy a prodigious appetite for constant sexual gratification.”
32
In summary, the evidence overwhelmingly satisfies the tests affirmed in Bazley,
Jacobi and K.L.B. The relationship between the diocesan
enterprise and Bennett was sufficiently close. The enterprise substantially
enhanced the risk which led to the wrongs the plaintiff-respondents suffered.
It provided Bennett with great power in relation to vulnerable victims and
with the opportunity to abuse that power. A strong and direct connection is
established between the conduct of the enterprise and the wrongs done to the
plaintiff-respondents. The majority of the Court of Appeal erred in failing to
apply the right test. Had it performed the appropriate analysis, it would have
found the Roman Catholic Episcopal Corporation of St. George’s vicariously
liable for Father Bennett’s assaults on the plaintiff-respondents.
33
I conclude that the Roman Catholic Episcopal Corporation of St. George’s
is vicariously liable for the wrongs done to the plaintiff-respondents.
III. The Liability of the Roman Catholic
Church
34
The appellant St. George’s argues that the Roman Catholic Church should
be found liable. The trial judge and the Court of Appeal unanimously rejected
this proposition. I decline to deal with this argument on the record before us
in this case.
35
The Roman Catholic Church is a religious organization operating in many
countries of the world, including Canada. It possesses a hierarchical
structure with the Pope at its apex, and works through diverse orders, groups
and individuals. On the record before us, it is impossible to answer the
questions as to procedure and remedies for recovery which the claim against the
Church raises. The record does not provide the clear picture of the details of
the Church’s hierarchy or of the relationship between the Church and its
constituent parts, necessary to delineate the boundaries of the institution,
the nature of its legal status, and its potential liability. Nor does the
record offer much assistance on the procedural questions that would need to be
answered before the Church, as a global institution, could be found liable for
the wrongs committed by Father Bennett in the diocese of St. George’s. Although
named as a party, the Church was not represented during the proceedings in this
case, and issues relating to procedure and remedies for recovery were left
unexplored.
36
Without suggesting that the full organizational structure of the Roman
Catholic Church and its relations with its various constituent organizations
must be apparent on the evidence before a finding of Church liability could be
made, I am satisfied that the record before us is too weak to permit the Court
in this case to responsibly embark on the important and difficult question of
whether the Roman Catholic Church can be held liable in a case such as this.
37
For these reasons, I decline to deal with the appellant’s second
argument.
IV. The Cross-Appeal
38
The plaintiff-respondents bring a cross-appeal, asking that the Court
reconsider and assess the liability of all the defendants, including the Roman
Catholic Episcopal Corporation of St. John’s, Bishop Lahey, Archbishop
MacDonald, Archbishop Penney and the Roman Catholic Church.
39
The cross-appeal is brought “conditionally”. The cross-appellants
(plaintiff-respondents) state that they pursue it only in the event that the
appeal of the appellant St. George’s is granted. Paragraph 70 of the
respondents/cross-appellants’ factum states:
This argument deals only with the liability of the Corporation
sole, and if successful then this Court should be free to reconsider and assess
the liability among all defendants. Thus the respondents have filed this
conditional cross-appeal, to follow and be considered only if this Honourable
Court decides the Episcopal Corporation of St. George’s shall itself not be
liable to the respondents.
40
The Rules of this Court make no provision for a “conditional” appeal or
cross-appeal. However, parties are free to indicate that they will not pursue
certain matters upon certain eventualities, and fairness requires that such
representations not be disregarded, particularly where other parties have
relied on them.
41
I therefore decline to consider the issues raised on the cross-appeal.
V. Conclusion
42
The appeal and the cross-appeal are dismissed.
43
The Roman Catholic Episcopal Corporation of St. George’s is directly and
vicariously liable to the plaintiff-respondents. Given the extraordinary
circumstances of this case and this appeal and the plaintiff-respondents’
stated intention from the outset of these appeal proceedings that it had no
desire to appeal to this Court absent an appeal by the Roman Catholic Episcopal
Corporation of St. George’s, I would grant the plaintiff-respondents costs of
this appeal and their cross-appeal, payable by the Roman Catholic Episcopal
Corporation of St. George’s on a solicitor-client basis.
Appeal and cross-appeal dismissed with costs.
Solicitors for the appellant/respondent on cross-appeal:
Adair Morse, Toronto.
Solicitors for the respondent/appellant on cross-appeal, John Doe:
Stack & Associates, St. John’s.
Solicitors for the respondent/appellant on cross-appeal, John Doe:
Williams, Roebothan, McKay & Marshall, St. John’s.
Solicitors for the respondents on cross-appeal,
Alphonsus Penney, Raymond Lahey and James MacDonald: Benson
Myles, St. John’s.
Solicitors for the respondent on cross-appeal, the Roman Catholic
Episcopal Corporation of St. John’s: Harrison Pensa, London, Ont.
Solicitor for the intervener the Attorney General of Canada:
Attorney General of Canada, Ottawa.
Solicitors for the intervener the Canadian Conference of Catholic
Bishops: Barnes, Sammon, Ottawa.