Case Name:

McGowan v. Canada (Attorney General)

BetweenRonald Jeffrey McGowan, Plaintiff, and

The Attorney General of Canada, Defendant

[2014] N.B.J. No. 111

2014 NBQB 104

418 N.B.R. (2d) 249

No. S/C/115/2011

New Brunswick Court of Queen's BenchTrial Division - Judicial District of Saint John

Saint John, New Brunswick

H.H. McLellan J.

Heard: April 9, 2014.Oral judgment: April 9, 2014.

(24 paras.)

Civil litigation -- Civil procedure -- Judgments and orders -- Summary judgments -- Availability -- To dismissaction -- Motion by federal Crown for summary judgment dismissing plaintiff's action dismissed -- Plaintiffwas sexually assaulted as teenage air cadet in 1980s -- He contended Crown was vicariously liable,negligent and breached fiduciary duty based on inadequate supervision and screening of officer whoperpetrated assaults -- Crown submitted it was not responsible for officer's conduct, as assaults occurredafter hours at officer's home -- Real issue for trial existed based on jurisprudence suggesting the greaterexercise of power was required for enterprise, the more likely abuse of such power could be ascribed toemployer.

Government law -- Crown -- Actions by and against Crown -- Crown liability for acts of servants -- Act withinscope of duties or employment -- Motion by federal Crown for summary judgment dismissing plaintiff's actiondismissed -- Plaintiff was sexually assaulted as teenage air cadet in 1980s -- He contended Crown wasvicariously liable, negligent and breached fiduciary duty based on inadequate supervision and screening ofofficer who perpetrated assaults -- Crown submitted it was not responsible for officer's conduct, as assaultsoccurred after hours at officer's home -- Real issue for trial existed based on jurisprudence suggesting thegreater exercise of power was required for enterprise, the more likely abuse of such power could be ascribedto employer.

Tort law -- Vicarious liability -- Liability of employer for acts of employee -- Motion by federal Crown forsummary judgment dismissing plaintiff's action dismissed -- Plaintiff was sexually assaulted as teenage aircadet in 1980s -- He contended Crown was vicariously liable, negligent and breached fiduciary duty based

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on inadequate supervision and screening of officer who perpetrated assaults -- Crown submitted it was notresponsible for officer's conduct, as assaults occurred after hours at officer's home -- Real issue for trialexisted based on jurisprudence suggesting the greater exercise of power was required for enterprise, themore likely abuse of such power could be ascribed to employer.

Motion by the defendant, the federal Crown, for summary judgment dismissing the action of the plaintiff,McGowan. The plaintiff was an air cadet as a teenager in 1985. He alleged that he was sexually assaultedby a commanding officer in 1988. The improprieties incurred in the commanding officer's home while theplaintiff and other cadets socialized and stayed over night. The officer was convicted in criminal proceedingsrelated to the misconduct. The plaintiff claimed that the Crown was vicariously liable for the actions of thecommanding officer, a person entrusted with authority and control over young persons. The plaintiff allegedthat his career and quality of life was detrimentally impacted by the long-term effects of the assault. Theplaintiff claimed that the Crown was negligent in its screening and supervision of the commanding officer andclaimed against it for breach of fiduciary duty. The plaintiff claimed general, aggravated and punitivedamages. The Crown submitted that as an employer, it was not responsible for the officer's conduct afterhours and away from work.

HELD: Motion dismissed. The commanding officer was commissioned as a Lieutenant in the CanadianForces Cadet Instructor List. He stood in a position of respect, working with young people encouraged toemulate and obey him. Supreme Court of Canada jurisprudence suggested that the greater an exercise ofpower or authority was required for a successful enterprise, the more likely an abuse of that powerrelationship could be fairly ascribed to the employer. Given the nature of the power relationship between theplaintiff and the officer, there was a real issue for trial precluding summary judgment in favour of the Crown.

Counsel:

Ali I. Raja for the Plaintiff.

Sarah E. Drodge and Corinne M. Bedford for the Defendant.

DECISION

1 H.H. McLELLAN J. (orally):-- By pre-trial motion the Defendant, The Attorney General of Canada, asksthat this action be dismissed and that it be allowed summary judgment with cost. The basis of the action issummarized in the Statement of Claim as follows:

4. The Defendant, The Attorney General of Canada at all times material employed a mannamed Edward O'Leary to whom they entrusted fiduciary duties over a squadron of aircadets. Mr. O'Leary served as a Lieutenant with the 527 Simonds Squadron Air Cadets.Mr. O'Leary was placed by the Defendant in a fiduciary relationship with the Plaintiff atall times material.

5. The Plaintiff joined the 527 Simonds Squadron Air Cadets in 1985 at which time thePlaintiff was fourteen years old. The Defendant placed Mr. O'Leary in a position of trustover air cadets such as the Plaintiff.

6. In and around 1988 Mr. O'Leary sexually assaulted the Plaintiff who at the time wassixteen. Mr. O'Leary leveraged his fiduciary position to access the Plaintiff and to assertcontrol over him in regard to this abuse.

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7. The Plaintiff's subsequent career, and his quality of life, has been detrimentally impactedby the long term effects of this assault including psychological injury.

8. The Plaintiff claims against the Defendant and states the Defendant is vicariouslyresponsible for the actions of Edward O'Leary where Mr. O'Leary was employed by theDefendant who entrusted him to have authority and control over young persons such asthe Plaintiff.

9. The Plaintiff claims against the Defendant for negligence, including but not limited to,inadequate screening and supervision of Edward O'Leary a person to whom theyentrusted the care and gave authority over young persons like the Plaintiff.

10. The Plaintiff claims against the Defendant for breach of fiduciary duty where they placedtheir agent, officer, and employee, Edward O'Leary, as a fiduciary both responsible forthe care of young persons, and in a position of authority over them.

11. The Plaintiff therefore claims against the Defendant for negligence, vicarious liability,and breach of fiduciary, for damages including:

a) general damages for loss of enjoyment of life, pain, and sufferings; $* $*</QL:LISTLEVEL2> $*$*

b) general damages for loss of earning capacity; $* $* </QL:LISTLEVEL2> $*$*

c) aggravated damages; $* $* </QL:LISTLEVEL2> $*$*d) punitive damages; $* $* </QL:LISTLEVEL2> $*$*e) legal costs and disbursement; $* $* </QL:LISTLEVEL2> $*$*f) prejudgment interest; $* $* </QL:LISTLEVEL2> $*$*g) such other relief as this Honourable Court deems appropriate. $* $*

</QL:LISTLEVEL2> $*$*

2 From the evidence before the Court on this motion in the discovery of the Plaintiff and in the limitedaffidavit evidence on behalf of the Defendant, it is clear that the basis of the Plaintiff's claim is founded onsexual assaults and touching by Mr. O'Leary of the Plaintiff. At that time the Plaintiff was sixteen and Mr.O'Leary was an adult officer in the cadet squadron to which the Plaintiff belonged.

3 All the sexual improprieties occurred in Mr. O'Leary's home while the Plaintiff was there on evenings withother cadets and engaged in such things as playing Dungeons and Dragons, socializing and sometimesstaying overnight.

4 All of that activity had nothing to do with the cadets. It was not "cadet time" and it was completelyunofficial. Mr. O'Leary was in effect enticing the cadets to hang out with him with things like Dungeons andDragons. This was not something that happened during cadet activities or events that were sanctioned andofficial.

5 As well, it is clear that the reason the Plaintiff was there was because his friends, other cadets, weregoing there too and he wanted to hang out with them. He enjoyed hanging-out with his friends and he alsoenjoyed the company of Mr. O'Leary. At cadets the Plaintiff had no direct contact with Mr. O'Leary. Mr.O'Leary was not his immediate supervisor. The Plaintiff knew Mr. O'Leary as an officer and respected him assuch. As well, the Plaintiff liked the different personality that Mr. O'Leary exhibited off duty, away from cadetswhile entertaining kids in his basement.

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6 There is no dispute that sexual misconduct had occurred. Mr. O'Leary has been convicted.

7 Counsel for the Defendant makes the point that this is not a sexual assault case but is a case of whetheror not there is vicarious liability or responsibility for a negligent employee or negligence with regard to anemployee. As I see it, the legal issue here is where this case falls with regard to the leading cases from theSupreme Court of Canada, Bazley v. Curry [1999] 2 S.C.R. 534 and Jacobi v. Griffis [1999] 2 S.C.R. 570.

8 From the point of view of the Plaintiff, this case is more like Bazley, where responsibility was found. Thatwas a case of a child being sexually abused while in a residential care facility.

9 From the point of the Defendant, this case is more like Jacobi, where the Boys and Girls Clubempowered and employed a person as a program director who enticed children to his home after hours andaway from work. In Jacobi the employer was found not responsible for what happened away from the Boysand Girls Club.

10 Within these two cases various principles and concepts are elaborated on in some length by theSupreme Court of Canada on the nature and extent of vicarious liability and responsibility by employers whoput vulnerable children in the care of the employees.

11 The decision of Justice McLachlin, now the Chief Justice of Canada, in Bazley includes an analysisabout risk of harm. In paragraph 44 she makes the point:

The more the employer encourages the employee to stand in a position of respect andsuggests that the child should emulate and obey the employee, the more the risk maybe enhanced.

12 In other words, the more an enterprise requires the exercise of power or authority for its successfuloperation, the more materially likely it is that an abuse of that power relationship can be fairly ascribed to theemployer.

13 Here this employee, Edward O'Leary, was not just an employee or a jock helping out running aprogram at the Boys and Girls Club. He was commissioned as a Lieutenant, as an officer in the CanadianForces Cadet Instructor List. As I see it, he could be said to "stand in a position of respect".

14 As well, his position as a commissioned officer working with young people, who are being encouragedto have a positive view of the military and authority could be said to have suggested that "the child shouldemulate and obey" this lieutenant.

15 Madame Justice McLachlin went on to say that:

The more an enterprise requires the exercise of power or authority for its successfuloperation, the more materially likely it is that an abuse of that power relationship can befairly ascribed to the employer.

16 As I see it, it can also be said that an organization such as a cadet squadron does require the exerciseof power or authority for successful operation.

17 In paragraph 46 of Bazley, the last sentence includes the following:

Because of the peculiar exercises of power and trust that pervade cases such as childabuse, special attention should be paid to the existence of a power or dependencyrelationship, which on its own often creates a considerable risk of wrongdoing.

18 On the limited evidence that is before me, it seems to me that the relationship between animpressionable teenage air cadet and a commissioned officer, an adult with some responsibilities in thesquadron, is closer to a power relationship than a relationship between a program director and children at aBoys and Girls Club in Jacobi.

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19 In Jacobi a major concern was that all the wrong doings were happening away from the Boys and GirlsClub and disconnected from it. The employee was enticing these kids to hang-out with him and to be off site.Most of the assaults occurred at the employee's home.

20 Here there is a real argument on behalf of the Defendant that as the alleged assaults occurred in thehome of the employee after he had enticed the Plaintiff there on Friday nights that in some ways this case iscloser to Jacobi.

21 I appreciate that there are other cases about teachers, members of the clergy and other types ofemployees that may throw some light on the eventual disposition of this case.

22 The rules for granting summary judgment have been reviewed and reinforced in a number of decisions.There is a detailed summary of a number of New Brunswick cases in Westmorland-Albert WasteCorporation v. A.J. Equipment Sales Limited, [2006] NBJ 578. Recently, the Supreme Court of Canadahas added its weight to the position that there should be less hesitancy by motion judges in dealing withmotions of summary judgment Hryniak v. Mauldin, 2014 SCC 7.

23 After considering the principles that are summarized in those cases and the circumstances here, itseems to me that there are real issues for trial in this case. In my view, there is some merit to the Plaintiff'saction and there is much more than what has been called the "germ" of a cause of action.

24 For these reasons, it is my duty to dismiss the motion for summary judgment and to let this matter go totrial. I will allow costs of $2,000.00 payable forthwith to the Plaintiff from the Defendant on this motion.

H.H. McLELLAN J.

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