Young v. Bella, 2006 SCC 3, [2006] 1 SCR 108

                                                 SUPREME COURT OF CANADA

Between:

Wanda Young

Appellant

v.

Leslie Bella, William S. Rowe and Memorial University

of Newfoundland

Respondents

‑ and ‑

Child Welfare League of Canada

Intervener

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

______________________________

Young v. Bella, [2006] 1 S.C.R. 108, 2006 SCC 3

Wanda Young                                                                                                   Appellant

v.

Leslie Bella, William S. Rowe and Memorial University

of Newfoundland                                                                                          Respondents

and

Child Welfare League of Canada                                                                   Intervener

Indexed as:  Young v. Bella

Neutral citation:  2006 SCC 3.

File No.:  30670.

2005:  October 20; 2006:  January 27.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Charron JJ.

on appeal from the court of appeal for newfoundland and labrador

Torts — Negligence — Duty of care — University professors — Report of suspected ill‑treatment of children — Student of social work submitting as an appendix attached to term paper an unattributed first person account of woman sexually abusing children — Professor speculating that account autobiographical but not seeking explanation from student — Professor taking her concerns to Director who, without inquiring further, sent report to Child Protection Services — Student red‑flagged as potential child abuser — Investigation by Child Protection Services two years later quickly determining that student’s account had been copied from textbook and suspicion baseless — Student bringing action in negligence against professor, Director and University — Whether all elements of tort of negligence established — Whether action barred by child welfare legislation, which protects informants who report child abuse unless report is done “maliciously or without reasonable cause” — Child Welfare Act, R.S.N. 1990, c. C‑12, s. 38(1), (6).

Damages — Jury award — Whether evidence at trial supported jury’s award of damages.

Damages — Non‑pecuniary damages — Jury awarding $430,000 in non‑pecuniary damages in negligence case — Whether jury award should be set aside — Whether cap should be applied to non‑pecuniary damage awards outside catastrophic personal injury context.

The appellant was a university student taking courses toward her goal of being admitted to the School of Social Work and becoming a social worker.  As a result of a missing footnote to her term paper, professor B speculated that the case study attached as an appendix might be a personal confession to having sexually abused children (a “cry for help”).  In fact the case study had been taken from a textbook listed in the bibliography attached to the term paper.  B also suspected the term paper itself to be plagiarized.  She wrote a letter to the appellant raising the issue of plagiarism, but did not mention to the appellant her concerns about suspected child abuse or request an explanation regarding the appendix.  B later took her concerns to R, the Director of the School of Social Work, who, without seeking an explanation from the appellant, sent a “suspected ill‑treatment” report to the Child Protection Services (“CPS”).  Consequently, unbeknownst to the appellant, the suggestion that she was a suspected child sex abuser was discussed amongst three university professors, communicated to the RCMP, and disclosed to a minimum of ten social workers in several communities, many of whom knew the appellant through her summer employment and one of whom was her boyfriend’s sister.  More than two years after the initial report a CPS staff worker belatedly sought a meeting with the appellant where, for the first time, the appellant learned of the long‑standing “report”.  She delivered the relevant textbook to CPS the next day.  It was immediately obvious to CPS that the appendix had been copied from the textbook listed in the bibliography and was not in the least autobiographical.  By letter of September 13, 1996, CPS acknowledged that “When explored it was immediately clear that the information did not relate to you.  Rather, the information provided was an excerpt from a book.”

The appellant then sued the respondents complaining that their actions  “combined to put in motion a series of events that would forever shape the course of [her] future by affecting her reputation in the community, her ability to complete her education and by reducing her income‑earning capacity”.  A jury found the University’s treatment of the appellant to be negligent and further found that as a result of this negligence her chosen career prospects had been destroyed; it awarded $839,400 in damages, including $430,000 in non‑pecuniary damages.  A majority of the Court of Appeal set aside the jury award, concluding that the action was barred by s. 38(6) of the Child Welfare Act, which provided that an action did not lie against an informant of ill‑treatment against a child “unless the making of the report is done maliciously or without reasonable cause”.

Held:  The appeal should be allowed and the trial judgment should be restored.

Everyone is required by s. 38(1) of the Child Welfare Act to report “information that a child has been, is or may be in danger of abandonment, desertion, neglect, physical, sexual or emotional ill‑treatment or has been, is or may be otherwise in need of protection”.  Those who are subject to a statutory duty to report must be protected from any adverse legal consequences flowing from compliance with that duty, but here the university professors acted on conjecture and speculation which fell short of the required “reasonable cause” to make a report to CPS required by s. 38(6). They did not even have misinformation (for which protection will be available unless reported maliciously or without reasonable cause).  They acted in a way the jury found to be without any reasonable cause even to make a report. [3] [44] 

There was evidence before the jury capable of establishing all the elements of the tort of negligence.  In the present case, proximity was not simply grounded in a misguided report to CPS but was rooted in the broader relationship between the University’s professors and their students, which gave rise to a duty of care.  The standard of care that ought to be met by professors in respect of their students  required them to take the necessary care to get their facts straight before taking a potential career‑ending action.  Here, both B and R failed to seek an explanation from the appellant.  In light of the evidence, it was open to the jury to conclude that their behaviour fell markedly short of the standard of care professors are required to meet in respect of their students.  There is no basis for an appellate court to intervene with the jury’s findings in this respect. [27‑43]

Section 38(6) does not bar the appellant’s action.  Under s. 38(1), information that a child “may be” in danger or in need of protection suffices to trigger the duty to report.  The respondents were not obliged to conduct their own investigation of the suspected abuse, nor were they required to have reasonable cause to believe abuse had in fact occurred before making a report.  They were, however, obliged to have reasonable cause to make a report to CPS, i.e. to possess information that CPS reasonably ought to be asked to look into, even if it turned out to be misinformation.  It is the absence of reasonable cause even to make a report that lay at the heart of the appellant’s allegation of negligence. [34] [49]

Section 38(6) offers no protection to the respondents because the case study contained in the appendix was not information that a child was in danger or in need of protection from the appellant.  So far as the respondents were concerned, its date and authorship were simply unknown.  There was nothing that tied the experiences it related to the appellant. R acted on nothing more than speculation and conjecture.  It appears the jury concluded that he must have known that simply making a report would have serious consequences, especially for someone in the appellant’s position, and in particular that a report by a prominent individual such as the Director of the School of Social Work would likely cause the appellant’s name to be placed on the Child Abuse Registry. [42] [51]

There is no basis for an appellate court to interfere with the jury’s award of damages.  There were many contingencies built into the damage calculations, all of which were laid out before the jury by the parties.  The jury chose to resolve those contingencies in favour of the appellant.  It was within their province, as the triers of fact, to do so.  The respondents’ argument that the appellant’s claim is really an action for defamation, dressed up as a negligence action, must be rejected.  The possibility of suing in defamation does not negate the availability of a cause of action in negligence where the necessary elements are made out. [54‑56]

There was also evidence to permit the jury to find that there was a causal connection between the University’s breach of duty and the damages suffered by the appellant, that the damage sustained by the appellant was foreseeable, and that contributory negligence on the part of the appellant had not been proved.  Finally, the jury’s award for non‑pecuniary damages cannot, in light of the evidence, be said to be wholly disproportionate or so shockingly unreasonable so as to justify appellate interference.  Nor is the case for imposing a cap in respect of negligence causing economic loss made out here.  The issue of whether and in what circumstances a cap applies to non‑pecuniary damage awards outside the catastrophic personal injury context is left open for consideration in another case. [59‑66]

Cases Cited

Applied:  Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; distinguished:  Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Thornton v. School District No. 57 (Prince George), [1978] 2 S.C.R. 267; Arnold v. Teno, [1978] 2 S.C.R. 287; referred to:  Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25; Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79; Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860, 2000 SCC 60; Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147; Fulton v. Globe and Mail (1996), 194 A.R. 254, aff’d (1997), 53 Alta. L.R. (3d) 212; Elliott v. Canadian Broadcasting Corp. (1993), 16 O.R. (3d) 677, aff’d (1995), 25 O.R. (3d) 302; Spring v. Guardian Assurance plc, [1994] 3 All E.R. 129; Nance v. British Columbia Electric Railway Co., [1951] A.C. 601; S.Y. v. F.G.C. (1996), 78 B.C.A.C. 209.

Statutes and Regulations Cited

Child Welfare Act, R.S.N. 1990, c. C‑12, s. 38(1), (6).

APPEAL from a judgment of the Newfoundland and Labrador Court of Appeal (Roberts, Welsh and Rowe JJ.A.) (2004), 241 Nfld. & P.E.I.R. 35, 716 A.P.R. 35, 8 C.P.C. (6th) 131, [2004] N.J. No. 338 (QL), 2004 NLCA 60, setting aside a jury award.  Appeal allowed.

Gillian D. Butler, Q.C., and Kimberley M. McLennan, for the appellant.

R. Wayne Bruce and Susan E. Norman, for the respondents.

Michael E. Barrack and Christopher A. Wayland, for the intervener.

The judgment of the Court was delivered by

The Chief Justice and Binnie J. —

I.     Introduction

1                                   The appellant, Wanda Young, was a student at Memorial University of Newfoundland in 1994, taking courses toward her goal of being admitted to the School of Social Work and becoming  a social worker.  Because of a bizarre misunderstanding between her and one of her professors over a missing footnote to a term paper, a misunderstanding that was not brought to the appellant’s attention until more than two years after her paper was submitted, she was reported in May 1994 by the respondent William Rowe, the then Director of the School of Social Work, to the provincial Child Protection Services (“CPS”) as a potential child abuser.  When the report was belatedly “investigated” by CPS in 1996, the misunderstanding was cleared up within 24 hours.  The suspicion of child abuse was found by CPS to be without a shred of reality.  As a result of the Director’s report, however, the appellant (unbeknownst to her) had been placed on the provincial Child Abuse Registry and her name was “red flagged” in the police and social work communities in Newfoundland and Labrador where, as an aspiring social worker, she might have hoped to obtain employment.  A Newfoundland jury found the University’s treatment of her to be negligent, and further found (more controversially) that as a result of this negligence, her chosen career prospects had been destroyed.  The jury awarded her damages of $839,400.

2                                   It is important that suspected child abuse be promptly reported.  But, as this case illustrates, it is also important that persons in positions of authority (such as university professors in relation to their students) act responsibly and avoid unfounded and damaging reports of suspicion.  Section 38(6) of the Child Welfare Act, R.S.N. 1990, c. C-12, requires there to be “reasonable cause” to make the report, thus striking an appropriate balance between the protection of children, the protection of third parties against unfounded allegations, and the protection of informants.

3                                   A majority of the Newfoundland Court of Appeal overturned the jury award because it considered the appellant’s action to be barred by s. 38(6), which protects individuals from legal action who report “information that a child has been, is or may be in danger” of abuse.  We agree, of course, that those who are subject to a duty to report information must be protected from any adverse legal consequences flowing from compliance with that duty, but here the university professors acted on conjecture and speculation which fell far short of the required “reasonable cause” to make a report to CPS required by s. 38(6).  They did not even have misinformation (for which protection will be available unless reported maliciously or without reasonable cause).  They acted in a way the jury found to be without any reasonable cause to make a report.  In our view, s. 38(6) does not bar relief to the appellant in these circumstances.  The cause of the action of negligence was properly put to the jury.  The defence’s evidence, as well as the plaintiff’s evidence, was clearly laid out by the trial judge. It was open to the jury, as the finder of facts, to reach the conclusions it did on the evidence put before it.  We would allow the appeal, set aside the decision of the Court of Appeal, and restore the jury’s verdict.

II.      The Facts

4                                   In 1994, the appellant, then 23 years old, lived in Spaniard’s Bay, a community about a hundred kilometres from St. John’s.  Although a full-time fee-paying student, she subscribed to “distance courses” taught largely by conference calls and correspondence.  Her interaction with her professors in St. John’s was limited.  Her grades were marginal, and in 1993, her application to pursue a specialized course of study at the School of Social Work was rejected.  Nevertheless, she soldiered on and took what courses in social work she was eligible to take.

5                                   In April 1994, the appellant submitted her final assignment in Social Work 5614, entitled “Social Work in Rural Newfoundland and Northern Labrador”.  The appellant said she met with her professor, the respondent Professor Leslie Bella, only once during the term.  She said she obtained prior approval of the topic for her paper entitled “Juvenile Sex Offenders — Treatment and Counselling Techniques”.  The paper was eventually submitted over two weeks late.

6                                   Her term paper included the uncontroversial observation that abused children may themselves go on to become abusers.  To illustrate this observation, the appellant  attached as Appendix A a case study copied from a textbook. The case study was a woman’s “first person” account of being sexually abused as a child, then sexually abusing children in her care as an adult babysitter.  The textbook from which the case study was taken was listed in the appellant’s bibliography.  However, the Appendix was not footnoted in the body of the text in accordance with proper practice, a requirement of which the appellant was apparently oblivious.  In light of subsequent events, it is convenient to reproduce the portion of her term paper that referred to Appendix A:

From an early age, generally around the ages of eleven or twelve, many sex offenders develop specific interest in various sexual behaviours.  Many agree that these behaviours are learned primarily through observation and by direct experience.  These experiences are often the result of sexual abuse.  In the majority of cases, juvenile sex offenders are themselves victims of sexual abuse (See appendix A).  Sexual abuse occurs in a cycle that is repeated over and over, so if we could get to these offenders at an early age we would prevent a lot of this abuse. [Emphasis added.]

Appendix A itself did not contain any identifying details of dates, places or the names of people implicated in the confession.  In particular, there was nothing to link the experiences it related to the appellant herself.

7                                   Professor Bella testified that she was taken aback to read a case study written in a confessional style by a woman, which in those days she considered unusual.  Instead of accepting Appendix A as illustrative of the point being made in the term paper, Professor Bella speculated that perhaps it was autobiographical, a personal confession by the appellant of having sexually abused children she babysat, or as Professor Bella put it, a “cry for help”.  Professor Bella also suspected the term paper was plagiarized.

8                                   On April 26, 1994, Professor Bella shared her concerns with the Acting Director of the School of Social Work and Chair of the School’s Admissions Committee,  Professor Jane Dempster.  Professor Bella showed Professor Dempster Appendix A of the term paper, without the paper itself, and did not mention that the appendix had been attached to a paper on juvenile sex offenders.  Based on what she was told, Professor Dempster (who did not read the term paper) testified that she suggested Professor Bella meet with the appellant to discuss the appendix, and, if the meeting did not resolve her concerns, to call CPS.  In the meantime, Professor Dempster undertook to consult the appellant’s personal file to see if perhaps a letter of reference or other document disclosed the name of a child or children babysat by the appellant that could lead to further inquiries.  The search apparently yielded nothing of interest.

9                                   Instead of meeting with the appellant and asking her to explain where Appendix A came from, Professor Bella decided her plagiarism inquiry should proceed entirely separately from the abuse inquiry which she thought should go directly to CPS.  Accordingly, her letter of April 28, 1994 to the appellant said nothing about Appendix A, the “footnote issue” or Professor Bella’s speculation about its autobiographical nature.  After stating that the topic of juvenile sex offenders was not appropriate for the course (although as stated the appellant testified the topic had been approved in advance), Professor Bella’s letter went on to suggest the appellant’s paper might have been written for another course (“self-plagiarism”) or by somebody else (“[t]he style of presentation in your paper is very different from the work in your examination”).  Professor Bella then wrote:

Please consider my comments, and decide if you can give me evidence that the paper was (i) written for this course, (ii) was your own work (iii) and that its submission was delayed for reasons that are not your own fault. . . .

Please note that if I do proceed to mark this paper I will also check your references and other related sources, to confirm that you have not plagiarised sections of the paper.

10                               Without waiting to hear back from the appellant, Professor Bella placed an informal telephone call on April 28, 1994 to CPS for advice.  She was told that as she was unable to provide any information about a specific child at risk, there was nothing for CPS to inquire into.  CPS also advised Professor Bella to speak to the appellant to obtain some clarification.  Professor Bella did not accept this advice.  Nothing was ever said by any of the professors to the appellant about the footnote issue or their suspicions that Appendix A was autobiographical. 

11                               Professor Bella’s notes confirmed that she heard from the appellant shortly after dispatch of the letter, and the appellant testified that she provided Professor Bella with all the documents requested to rebut the suspicion of plagiarism.  In the end, Professor Bella declined to mark the paper (ostensibly because of its lateness) and gave the appellant a zero.

12                               Although Professor Bella did not raise the issue of the case study and possible child abuse with the appellant (as she considered that it was not her proper role to “investigate”),  she did not let the matter rest.  She took her concerns to the Director of the School of Social Work, Dr. William Rowe.  She told Dr. Rowe the appendix “was neither referenced nor had any explanation in terms of paper”.  Dr. Rowe, making no other inquiries, then attached Appendix A to a report he sent to Paula Burt of CPS dated May 25, 1994, which read in its entirety as follows:

Further to our conversation, please find enclosed an item submitted by Wanda Young [address omitted] who was a student in one of our distance education courses this past term.

The paper, while competently written, had little, if anything, to do with the assignment and the case study was attached without explanation.  The material in the case study is alarming and it maybe [sic] appropriate for someone from your office or from the RCMP detachment responsible for Spaniard’s Bay to follow up.

Please inform me of your decision.  If I can be of any assistance, please do not hesitate to call me.  [Emphasis added.]

The community of social workers in Newfoundland is very small.  There is only one School of Social Work. For example Paula Burt, while working at CPS, was also continuing courses at the school, and was therefore a fellow student of the appellant.  Dr. Rowe did not disclose to Paula Burt that the case study was provided in the context of a paper on juvenile sex offenders.  Dr. Rowe knew, as a specialist in the field of child abuse, it was quite foreseeable that his report would result in the appellant’s name being placed on the  Child Abuse Registry.  Dr. Rowe testified:

Q. Okay.  You mentioned a Child Abuse Registry.  What Child Abuse Registry?

A. When someone has been, when a complaint has been sent to Social Services, or to Child Protection, their, if it’s found out to be a reasonable complaint, even if it isn’t a situation where someone has been found guilty, their name is placed on the Registry.

Officials from CPS testified that Dr. Rowe’s stature in the field of child abuse lent significant credibility to his report.

13                               Dr. Rowe rejected any suggestion that he ought to have raised his concern with the appellant before sending the letter.  That, he told the jury, was a job best left to CPS.  He also said he had copyright concerns about sharing the appellant’s paper with CPS.

14                               In the meantime, the University had written to the appellant on May 11, 1994, rejecting her request for reconsideration of her application to pursue a degree in social work.  Saying she was disheartened, the appellant approached Professor Jane Dempster (whose roles at the School of Social Work included guidance counselling) to see how she might improve her chances of acceptance.  Professor Bella had already shared with Professor Dempster her concerns about suspected child abuse but the appellant was not told about this or the reason why the School had decided she was irredeemably unfit for social work.  Professor Dempster was “cold” (according to the appellant) and flatly advised her that the faculty did not think she had what it took to be a social worker and that she should look elsewhere for a career.

15                               Professor Dempster said she had no recollection of such a meeting, and that the  remarks attributed to her sounded unlike the things she would normally say to a student in such circumstances.

16                               The evidence for the respondents was that there were numerous reasons why the appellant was rejected quite apart from suspicions about child abuse.  Admission to the course, they told the jury, was highly competitive (three applicants for each acceptance) and the appellant’s grades were low.  (The fact that Professor Bella gave her zero on her final assignment on juvenile sex offenders did not help matters.)  The evidence also suggested, however, that some students with low marks were counselled to take further courses.  The advice to the appellant, on the contrary, was to leave the field.

17                               Saying that she was demoralized by the peremptory tone of Professor Dempster’s message, the appellant took a summer job in Quebec and did not return to Memorial University in September.  Instead, she sought and accepted whatever casual employment she could obtain as a youth care worker at various facilities. Unbeknownst to her, the suggestion that she was a potential child sex abuser had been discussed amongst three university professors, communicated to the RCMP, and disclosed to a minimum of ten social workers in several communities, many of whom knew the appellant through her summer employment and one of whom was her boyfriend’s sister.

18                               More than two years after the initial referral to CPS, a staff worker sought a meeting with the appellant, which belatedly took place on September 9, 1996.  There, for the first time, the appellant learned of the long-standing “report”.  The appellant responded by delivering the relevant textbook to CPS the next day.  It was immediately obvious to CPS that Appendix A had been copied from the textbook and was not in the least autobiographical.  By letter of September 13, 1996, CPS sent the following acknowledgment:

Dear Ms. Young:

As per your request, this is to confirm that the Department of Social Services was made aware of information which it was advised related to you and we felt required further clarification.  When explored it was immediately clear that the information did not relate to you.  Rather, the information provided was an excerpt from a book.

Thank you for your understanding and complete cooperation in this process. [Emphasis added.]

No explanation was offered as to why it had taken CPS more than two years to “investigate” a matter which, on being looked into, was shown to be completely baseless within 24 hours.

19                               The University and its staff, however, refused to apologize, suggesting that because of the missing footnote, the appellant was the author of her own misfortune.

20                               Concerns about whether the appellant was safe to hire continued to dog her in the years that followed.  Evidence of her difficulty in finding work and attempts to mitigate it were put before the jury.  As late as January 2001, seven years after the baseless report, the witness Andrew Caddigan told the jury that the appellant’s application for a temporary job was openly questioned in his presence by others in the field on the mistaken belief that the appellant was “red-flagged” as a potential child abuser as a result of Dr. Rowe’s “report”.   

III.    The Legal Proceedings

21                               The appellant’s trial was heard before a civil jury.  Counsel for the University made essentially the same submissions on the facts at trial as he made before us.  He obtained a ruling from the trial judge that as a matter of law the words in Dr. Rowe’s letter to CPS were not capable of being defamatory.  The remaining claim, in negligence, proceeded.  The jury found that Professor Bella and Dr. Rowe had breached the duty of care owed to the appellant as a student of the University both before and after reporting; that the report to CPS was made without reasonable cause; that the professors failed to meet the required standard of care; that the injury and loss the appellant suffered was a foreseeable consequence of their acts and omissions; and that the appellant had not contributed to her damages.

22                               The jury heard medical and psychological evidence that the appellant had suffered  anxiety, embarrassment, insomnia, paranoia and depression as a result of the allegations against her (both before and after the report) and their repercussions.  It also received evidence of economic loss flowing from the University’s termination of her hope of becoming a social worker.  The jury went on to award damages as follows:

General non-pecuniary                                          $430,000

Past loss of income                                                  $47,000

Future loss of income                                            $314,000

Past loss of sick leave                                              $13,000

Future loss of sick leave                              $28,000

Cost of future care                                                   $7,400

Total                                                                     $839,400

23                               The Court of Appeal overturned the jury award, Roberts J.A. dissenting ((2004), 241 Nfld. & P.E.I.R. 35, 2004 NLCA 60).  Writing for the majority, Welsh J.A. was of the view that s. 38(6) provided a complete defence to the entire claim.  Roberts J.A., on the other hand, found no error by the trial judge, and concluded that there was ample evidence on which a jury, properly instructed, could reach the conclusions it did. Although strongly contested by the University, he thought the damages were not beyond the scope of what was reasonable, based on the evidence.  Roberts J.A. would have dismissed the appeal and cross-appeal.  Rowe J.A., while agreeing with Welsh J.A. that s. 38(6) of the Child Welfare Act shielded the University from liability relating to the report made to CPS, differed from Welsh J.A. on its scope.  In his view, s. 38(6) provided no defence to Ms. Young’s claim that the University, by its internal failures, had negligently and wrongfully denied her a career in social work.  Concerns about what damages possibly flowed from these dealings led him to conclude that a new trial was necessary.  The formal order of the Court of Appeal however simply allowed the appeal and dismissed the plaintiff’s action, Roberts J.A. dissenting.

24                               Ms. Young now appeals to this Court.

IV.    Analysis

25                               The issues raised in the appeal fall under the following main headings:

(1)     The nature of the cause of action;

(2)     The duty and protection accorded by s. 38 of the Child Welfare Act; and

(3)     Whether the law and evidence support the jury’s award of damages.

26                               In approaching these questions, we must bear in mind the principle that appellate courts should not overturn the verdict of a jury unless it is one that no reasonable jury, properly instructed, could reach: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25.

A.     The Nature of the Cause of Action

27                               The jury was asked whether Leslie Bella or William Rowe, by their acts or omissions, had breached the duty of care they owed to the appellant.  This is the classic formulation of the cause of action in negligence.  It is premised on a relationship between the plaintiff and the defendant, which in turn gives rise to a duty of care on the defendant toward the plaintiff.  Breach of the standard of care imposed by that duty creates legal liability for damages caused by the breach.  There was evidence before the jury capable of establishing all the elements of the tort of negligence. 

(1)     Existence of a Duty of Care

28                               The Court recently affirmed in Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79, at para. 24, and Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860, 2000 SCC 60, at para. 46, that the “duty” analysis proceeds in two stages:

(a)            Is there a sufficiently close relationship of proximity between the parties such that, in the reasonable contemplation of the defendant, carelessness on its part might cause damage to the plaintiff?

(b)            If so, are there any considerations which ought to negative or limit: (a) the scope of the duty; (b) the class of persons to whom it is owed; or (c) the damages to which a breach of it may give rise?

29                               The respondents assert that the duty of care in this case is negated for policy reasons under the second branch of the test.  They argue that s. 38 of the Child Welfare Act establishes the policy that in the interests of protecting children, people should be encouraged to report suspicions of child abuse, free from fear of reprisal.  The duty imposed by s. 38(1), they argue, should as a matter of policy negate any duty of care which might otherwise arise at common law.

30                               We discuss the Act in greater detail below.  At this point, however, it suffices to note that the respondents’ argument overlooks the fact that the appellant’s claim in negligence was a broad one, encompassing not only the report made to CPS, but the University’s dealings with the appellant generally.  Paragraph 15(a) of her Amended Statement of Claim reads:

The Plaintiff states that the actions of Dr. Bella, Dr. Rowe and other officials at Memorial University of Newfoundland combined to put in motion a series of events that would forever shape the course of the Plaintiff’s future by affecting her reputation in the community, her ability to complete her education and by reducing her income-earning capacity.

In support of this broader claim the appellant led evidence of failure to mentor, failure to properly advise her on her future and negligent publication within the faculty, through means other than the report to CPS, of the suggestion that the appellant may have abused children.

31                               In short, in the present case, proximity was not simply grounded in a misguided report to CPS, but was rooted in the broader relationship between the professors at Memorial University and their students.  The appellant, even as a “distant” student, was a fee-paying member of the university community, and this fact created mutual rights and responsibilities.  The relationship between the appellant and the University had a contractual foundation, giving rise to duties that sound in both contract and tort:  Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147.

32                               Whether or not a duty of care will be negatived where the parties are strangers linked only by the events surrounding a “report” is a question that should only be decided when it arises.  Assuming that the policy expressed in the Act could countermand potential liability for a negligent report in such circumstances, as discussed below, it does not provide any policy reason to negative liability that would otherwise arise on the facts of this case.  The scope of the s. 38(6) defence is restricted to the making of the CPS report and would not excuse the University and its employees from failure to live up to their broader responsibilities to the appellant as a member of the university community.  The facts in this case do not trigger the protection of the Act because, quite simply, the respondent Dr. Rowe acted on nothing more than speculation and conjecture in making his report which, as Director of the School of Social Work, he must have known would have serious consequences within the small community of social workers in Newfoundland, including the likely posting of the appellant’s name on the provincial Child Abuse Registry.

(2)     The Standard of Care

33                               The standard of care that ought to be exercised by professors towards their students was emphasized in the testimony of Dr. Wayne Ludlow who, during the relevant 1994-1996 period, was the Dean of Student Affairs at Memorial University.  Dr. Ludlow testified:

The relationship between the professor and the student is a special relationship . . . [I]t is an imbalanced relationship because professor is all knowing, and I can see now the fear and trembling of the young first-year students when they went to classes, someone in a flowing black robe.  So the power balance was evident . . . .

34                               Those whose professional responsibilities include the exercise of such power over the careers and future lives of fee-paying students are required to take the necessary care to get their facts straight before taking a potential career-ending action in relation to a student.  While legislative and judicial policy mandates the quick reporting of information of suspected child abuse, it does not do so to the exclusion of consideration of the legitimate interests of the person named in the report, or the interests of informants.  This  is not at all to say that the respondents were obliged to conduct their own investigation of the suspected abuse.  Informants are not required to have reasonable cause to believe abuse has in fact occurred before making a report.  They are, however, obliged to have reasonable cause to make a report to CPS, i.e. to possess information that CPS reasonably ought to be asked to look into, even if it turns out to be misinformation.  It is the absence of reasonable cause even to make a report that lies at the heart of the appellant’s allegation of negligence.

(3)     Breach of the Duty

35                               There was evidence that the University had breached these duties through the negligence of its employees.  The task of the reviewing court is not to agree or disagree with the jury’s conclusions, but just to satisfy itself that there was evidence on which the jury, properly instructed, could reasonably conclude as it did.  The issue for the jury was the failure of her professors even to seek from the appellant an explanation of a missing footnote before embarking on a course of action fraught with danger for her hoped-for-career.

36                               As might be expected, the recollections of events of the various participants differed.  There was no suggestion that any of the respondents had acted in bad faith.

37                               The jury clearly concluded that Professor Bella should have done what both Professor Dempster and officials at CPS recommended, namely check out the “footnote issue” with the appellant before proceeding on a course of action, in concert with Dr. Rowe, based on nothing more than speculation.  Professor Karen Mitchell (who, as sessional lecturer, also taught the appellant) told the jury it was not uncommon for students to make errors in footnoting.  Professor Dempster testified that in Professor Bella’s position, in writing to the appellant, she “would have made reference to appendix A, a clear reference”.

38                               Looking at the broader duty, the jury heard that Professor Dempster told the appellant, in effect, that she was unfit to be a social worker.  The jury must have concluded that Professor Dempster knew of Professor Bella’s speculation that Appendix A was autobiographical, but failed to check the facts before delivering a judgment on the appellant’s career prospects.

39                               The jury heard from the University’s Dean of Student Affairs, Dr. Wayne Ludlow, that

professors are mentors, that part of their whole philosophy for what they teach and what they espouse is to be able to allow young people to avail of their expertise and to learn and grow. [A.R., at p. 413]

40                               The jury heard evidence that Dr. Rowe’s report of speculation to CPS was itself negligent.  Dr. Rowe, without looking at the term paper, assured CPS in his letter that the case study had been attached “without explanation”.  At trial, when confronted with the term paper itself, which clearly indicated the relevance of the case study, he retreated to the view that “it didn’t seem like much of an explanation” (emphasis added).  However, Elizabeth Crawford, the Director of CPS, testified that had she been given the full term paper she would have understood the context and looked at the situation differently.  Paula Burt, the CPS official to whom Dr. Rowe sent the May 25 report, testified that when she eventually saw the term paper the Appendix seemed to her to have “some relevance” to the appellant’s topic.

41                               At trial, Dr. Rowe testified that he was reluctant to send the term paper to CPS because it might infringe the appellant’s intellectual property rights but the jury appeared to conclude that it was unlikely someone reported for suspected sexual abuse would take a copyright objection to the handing over of exculpatory material that would show the suspicion to be unfounded.

42                               Dr. Rowe also took the view that it was up to CPS, not him, to determine whether an investigation was appropriate, but the jury must have concluded that he failed to provide CPS with the proper information (e.g., the term paper as well as the Appendix) on which such an informed decision could properly be made.  It appears the jury concluded that Dr. Rowe must have known that simply making a report would have serious consequences, especially for someone in the appellant’s position, and in particular that a report by a prominent individual such as the Director of the School of Social Work would likely cause the appellant’s name to be placed on the Child Abuse Registry.

43                               It was open to the jury to accept the respondents’ evidence if it found the professors to be persuasive, but it was equally open to the jury to conclude that the professors’ behaviour fell markedly short of the standard of care professors should exercise towards their students.  It was for the jury to make that determination.  The jury concluded that the University and its employees did not do so and there is no basis for an appellate court to intervene with the jury’s findings in that respect.

B.      The Duty and Protection under Section 38 of the Child Welfare Act

44                               The University and its employees argue that if they owed a duty of care to the appellant, this was negated by s. 38(6) of the Child Welfare Act.  In their view, s. 38(6) bars any cause of action on the facts of this case.  Section 38 provided:

38. (1) Where a person has information that a child has been, is or may be in danger of abandonment, desertion, neglect, physical, sexual or emotional ill-treatment or has been, is or may be otherwise in need of protection, the person shall immediately report the matter to the director, a social worker or a peace officer.

. . .

(6)   This section applies notwithstanding that the information is confidential or privileged, and an action does not lie against the informant unless the making of the report is done maliciously or without reasonable cause.

45                               The appellant argues that even if s. 38(6) applied, it would not furnish a complete defence, since her claim goes beyond the mere reporting of suspected abuse as required by the Act.  The respondents contend that this broader context makes no difference.  So strong is the policy of the Act that it overrides all other considerations. 

46                               The respondents’ argument was accepted in the majority judgment of the Newfoundland Court of Appeal.  Welsh J.A., speaking for herself and Rowe J.A., declined to interpret as disjunctive the test “unless the making of the report is done maliciously or without reasonable cause”.  In her view the phrase “without reasonable cause”, while ambiguous, means in context “the absence of good faith” (para. 44).  In other words s. 38(6), as interpreted, should read “maliciously or in the absence of good faith”.  In the result she found, “a report made in good faith, even if negligently made, is protected by subsection (6), precluding legal action against the reporter” (para. 53). 

47                               In our view, such an interpretation does not give effect to the legislator’s specification of both a subjective element (“maliciously”) and an objective element (“reasonable cause”) to determine whether the report of “information” is to be protected from all legal consequences.  The respondents and the intervener say that anything potentially relevant to child abuse that comes from an external source (i.e. eliminating only the product of the reporter’s unaided imagination) should be reported.  However, to construe s. 38(6) so broadly reads the words “reasonable cause” out of the section and fundamentally changes the legislative scheme.

48                               We agree with Welsh J.A. that the duty to report “information” imposed by s. 38(1) and the protection against suits accorded by s. 38(6) are co-extensive and must be read together.  The legislature cannot have intended to impose a duty to report and leave the informant exposed to legal liability for complying with the statutory duty.

49                               We also agree with Welsh J.A. that the duty to report under s. 38(1) should not be narrowly construed. The language of the section suggests as much.  Information that a child “may be” in danger or in need of protection suffices to trigger the obligation.  Moreover, the obligation is to report “immediately”.  This language suggests that there is no duty to investigate the information (where information exists) to ensure that it is accurate before reporting.  The Act distinguishes between the stage of receiving information suggesting danger or need of protection, which is for the informant, and investigating the truthfulness of the information, which is for CPS.  A broad duty to report information of possible abuse is consistent with the Act’s goal of protecting children.

50                               Where we disagree with Welsh J.A., however, is in our view that her interpretation of s. 38 evinces too little concern for third parties who may be adversely affected by irresponsible reports.  Here Dr. Rowe had no data that, interpreted by a reasonable person, would suggest that a child has been, was, or may be in need of protection from Wanda Young.  Foreseeable consequences such as placement on the Child Abuse Registry are serious matters.  While the primary objective of the Act is to protect children, it seeks to do so in a way that also takes into account the interests of the persons under suspicion and the interests of informants.  The interest of the person suspected of abuse is protected by the inclusion of an objective “reasonable cause” standard in s. 38(6).  These two components must be read together and the words used — “information” and “reasonable cause” — must together be given a purposive interpretation.  “Information” in s. 38(1) is the partner of “reasonable cause” in s. 38(6).  “Reasonable cause” does not mean reasonable grounds to believe that abuse has occurred, or is occurring, or will occur (which in certain legal contexts implies belief in the truthfulness of the information).  Section 38(6) sets a lower threshold.  The informant need only have “reasonable cause” to ask CPS to consider looking into the matter.

51                               Section 38(6) offers no protection to the respondents here because, however it is viewed, the case study contained in Appendix A to the appellant’s paper was not information that a child was in danger or in need of protection from Wanda Young.  So far as the respondents are concerned, its date and authorship were simply unknown (and not asked about).  There was nothing that tied the experiences it related to the appellant.  If there was a “cry for help”, there was nothing to indicate it originated with the appellant.  The respondents’ problem is that the jury, having heard conflicting versions of events, apparently concluded that the professors acted on speculation arising from their failure to properly consider the material before them.  Had Professor Bella or Dr. Rowe come into possession of information that related to the appellant in a relevant way, their duty would have been to report immediately, without investigating its truth.  In this case, they had no such information.

C.     Whether the Law and the Evidence Support the Jury’s Award of Damages

52                               A number of issues arise relating to damages.

(1)     Proof of Damages

53                               The appellant called Cara Brown as an expert on damages.  She laid out the calculations for four different “scenarios”, the choice of which would depend on the version of the facts eventually accepted as correct by the jury.  The respondents called no counter evidence to refute the calculations, although in his jury address their counsel  urged the jury not to accept the factual assumptions that gave rise to the various calculations:

Don’t judge damages on the fuss that’s being made here, or the length of the trial, or the number of witnesses.  It’s very easy to claim huge losses, and it’s very easy to make a mountain out of a mole-hill.

54                               There were many contingencies built into the damage calculations, all of which were laid out before the jury by the contending parties.  The jury chose to resolve those contingencies in favour of the appellant.  It was within their province, as the triers of fact, to do so. 

55                               The respondents, however, also take an objection in law to the award.  Starting from the fact, as stated, that the defamation issue was withdrawn from the jury by the trial judge because in his view the wording of Dr. Rowe’s letter dated May 25, 1994 to CPS was not capable of giving rise to a defamatory meaning, they argue that the appellant’s claim is really an action for defamation, dressed up as a negligence action.  They say that her action is essentially for loss of reputation, and that damages for loss of reputation can only be claimed in a defamation action to which the issues of malice and qualified privilege are relevant.  They say resort to negligence law interfered with the exercise of their freedom of expression of an opinion to CPS.  Negligence principles, they assert, do not strike the proper balance between free expression and the duty not to harm others.

56                               We cannot accept the respondents’ argument.  The possibility of suing in defamation does not negate the availability of a cause of action in negligence where the necessary elements are made out.  Freedom of expression and the policies underlying qualified privilege can be taken into account in determining the appropriate standard of care in negligence.  Counsel for the University referred to a number of cases in support of the assertion that this action lies only in defamation:  see, e.g., Fulton v. Globe and Mail (1996), 194 A.R. 254 (Q.B. (Master)), aff’d (1997), 53 Alta. L.R. (3d) 212 (Q.B.), and Elliott v. Canadian Broadcasting Corp. (1993), 16 O.R. (3d) 677 (Gen. Div.), aff’d (1995), 25 O.R. (3d) 302 (C.A.).  In fact, these were cases where the defendants’ actions alleged to have caused the plaintiffs’ loss of reputation fell entirely within the law of defamation and the basic elements of a negligence action, such as a duty of care owed to the plaintiffs, had not been established.  There is no reason in principle why negligence actions should not be allowed to proceed where (a) proximity and foreseeability have been established, and (b) the damages cover more than just harm to the plaintiff’s reputation (i.e. where there are further damages arising from the defendant’s negligence): see Spring v. Guardian Assurance plc, [1994] 3 All E.R. 129 (H.L.).  In fact, all of the cases cited by the respondents as standing for the proposition that defamation had “cornered the market” on reputation damages were cases in which (unlike here) there was no pre-existing relationship between the parties that gave rise to a duty of care.

57                               In summary then, we conclude that the evidence at trial supported the jury’s finding of negligence and the factual underpinnings of the appellant’s claim to damages.

(2)     Causation

58                               The respondents argue that the failure of the appellant to be admitted to the School of Social Work cannot be attributed to their conduct.  They point out that the appellant’s average grades were below the cut-off for admission.  Better qualified candidates were being turned away.  On the other hand, the jury also heard that the appellant’s position was not hopeless.  It was, the appellant says, only Professor Dempster’s advice, apparently fuelled by the baseless suspicions arising out of a missing footnote, that caused her to abandon steps that might have led to her improving her academic standing and gaining admission.  The evidence was that some of the other students with low grades were counselled to take extra courses to improve their averages, and some succeeded.  As well, the jury may have concluded that complete rejection of the appellant’s assignment on juvenile sex offenders lowered her scores more for reasons (plagiarism and suspicion of abuse) that proved entirely groundless than for its lateness.  The jury heard that marks were not the only criteria for admission.   Professor Dempster said that a candidate’s volunteer work and job experience are also relevant, the very experience which placement on the Child Abuse Registry jeopardized.

59                               Whether we agree with all of the findings the jury was prepared to make in the appellant’s favour on the question of damages is irrelevant.  While the issue of causation was strongly contested, there was, in our view, sufficient evidence to permit the jury to find a causal connection between the University’s breach of duty and the damages suffered by the appellant. 

(3)     Foreseeability of the Damage

60                               It was argued that it was not foreseeable that communications among university staff would result in such damages to the appellant.  Nor was it foreseeable, the respondents argue, that various officials at CPS would pass the file around from hand to hand and office to office for more than two years before actually picking up the phone to contact the appellant.  Nevertheless, there was evidence before the jury of the profound risk of damage posed by the fanciful speculations of the professors, which gave rise to their actions against the appellant internally as well as to their report to CPS.  The jury concluded that the professors’ collective negligence destroyed the career prospects of the appellant as a social worker.  The respondents strongly dispute such a conclusion and do so with some good reason, but it was open to the jury on the evidence to take that view, and to assess damages accordingly.  Their decision was not so aberrant that it could be said that no reasonable jury, properly instructed, could have made it.  Accordingly, we would not interfere.

(4)     Contributory Negligence

61                               The University argues that the appellant’s loss was in part caused by her failure to footnote the Appendix and her failure to address the source of the Appendix after receiving Professor Bella’s letter raising the issue of plagiarism.  However, the onus was on the respondents to prove on a balance of probabilities that the appellant failed to take reasonable care and the extent to which this contributed to her loss.  As earlier noted, Professor Bella’s letter to the appellant did not even raise an issue about Appendix A.  Moreover, the jury had Professor Mitchell’s evidence that footnoting mistakes were commonplace.  The jury must have found that contributory negligence on the part of the appellant had not been proved and that conclusion was open to it on the evidence.  The respondents’ argument on causation is little more than an invitation to this Court to retry the case.  We cannot accept this argument.

(5)     Quantification of Damages

62                               As discussed, there was evidence to support the claims for loss of income and cost of future care.  This leaves non-pecuniary damages and the issue of whether a judicially imposed cap on them is appropriate in this type of case.

63                               The respondents argue that the assessment of $430,000 for non-pecuniary damages must be set aside because the loss suffered by the appellant is not of such magnitude to justify “one of the largest non-pecuniary general damage awards . . . ever awarded in this country and it is therefore appropriate for this Court to exercise its discretion in adjusting same”.

64                               This is not the test for appellate interference with a jury award.  As mentioned earlier, the appellant called expert evidence (which was uncontradicted), laying out a number of scenarios based on different potential findings of fact for the jury’s consideration.  Damage assessments are questions of fact for the jury.  Jury awards of damages may only be set aside for palpable and overriding error.  It is a long-held principle that “when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone”: Nance v. British Columbia Electric Railway Co., [1951] A.C. 601 (P.C.), at p. 614.  On this test, we cannot conclude that the award for non-pecuniary damages should be set aside.  In light of the evidence, the jury’s award cannot be said to be wholly disproportionate or shockingly unreasonable.

65                               The respondents also argue that the cap on non-pecuniary damages imposed in catastrophic personal injury cases should be imposed in cases such as this: see Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, at p. 265; Thornton v. School District No. 57 (Prince George), [1978] 2 S.C.R. 267; and Arnold v. Teno, [1978] 2 S.C.R. 287.  The very different context of the “trilogy” is illustrated by the following passage from Andrews, at p. 262:

If damages for non-pecuniary loss are viewed from a functional perspective, it is reasonable that large amounts should not be awarded once a person is properly provided for in terms of future care for his injuries and disabilities.  The money for future care is to provide physical arrangements for assistance, equipment and facilities directly related to the injuries.  Additional money to make life more endurable should then be seen as providing more general physical arrangements above and beyond those relating directly to the injuries.  The result is a coordinated and interlocking basis for compensation, and a more rational justification for non-pecuniary loss compensation.

The respondents have not established why the policy considerations which arise from negligence causing catastrophic personal injuries, in the contexts of accident and medical malpractice, should be extended to cap a jury award in a case such as the present.  The argument was rejected in relation to damages for defamation in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at paras. 170-76.  In our view, the case for imposing a cap in cases of negligence causing economic loss is not made out here either.  As Macfarlane J.A. commented in S.Y. v. F.G.C. (1996), 78 B.C.A.C. 209:

There is no evidence before us that this type of case has any impact on the public purse, or that there is any crisis arising from the size and disparity of assessments.  A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums. [para. 30]

66                               We leave open for consideration in another case (where the policy considerations supporting a cap are more fully developed in evidence and argument) the issue of whether and in what circumstances the cap applies to non-pecuniary damage awards outside the catastrophic personal injury context.  While the damages are higher than we would have awarded in the circumstances, the law assigns the task of that assessment to the jury.  Given our conclusion that the cap does not apply in this case, the principle enunciated in Hill that an appellate court should not interfere with a jury assessment of non-pecuniary damages unless it “shocks the conscience of the court” (para. 163) precludes reduction of the award for non-pecuniary damages in this case.

V.     Conclusion

67                               We find no basis upon which to interfere with the jury’s verdict, and accordingly we would set aside the judgment of the Court of Appeal and restore the trial judgment with costs to the appellant on a party-and-party basis here and in the courts below.

Appeal allowed with costs.

Solicitor for the appellant:  Gillian D. Butler, St. John’s.

Solicitors for the respondents:  Stewart McKelvey Stirling Scales, St. John’s.

Solicitors for the intervener:  McCarthy Tétrault, Toronto.