Ipsofactoj.com: International Cases  Part 4 Case 7 [SCC]
SUPREME COURT OF CANADA
Roman Catholic Episcopal
Corporation of St. George's
- vs -
25 MARCH 2004
(delivered the judgment of the Court)
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.
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.
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).
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).
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
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
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.
The argument for direct liability of St. George's is as follows:
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;
The bishops (successively) constituted the corporation sole of St. George's under the relevant legislation and acted on its behalf.
Therefore St. George's is directly liable for these acts and omissions.
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.
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.
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.
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, 3 Geo. V., 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.
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.
This section permits the Corporation to be sued on all matters, not just those relating to property.
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.
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.
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
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.
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 Court of Appeal erred on this point and the view of the dissent is to be preferred.
This Court considered the application of the doctrine of vicarious liability to the tort of assault of children in Bazley v Curry,  2 S.C.R. 534, Jacobi v Griffiths,  2 S.C.R. 570, and K.L.B. v British Columbia,  2 S.C.R. 403, 2003 SCC 51. The decisions affirm the same test for vicarious liability.
In Bazley, the Court suggested that the imposition of vicarious liability 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, para. 15; Jacobi, 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.
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, at para. 41):
the opportunity that the enterprise afforded the employee to abuse his or her power;
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);
the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise;
the extent of power conferred on the employee in relation to the victim;
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.
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.
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.
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.
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.
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,  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" (at 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.
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.
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.
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, 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.
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.
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 .... there 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."
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.
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
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.
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.
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.
For these reasons, I decline to deal with the appellant's second argument.
IV. THE CROSS-APPEAL
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.
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 respondent-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.
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.
I therefore decline to consider the issues raised on the cross-appeal.
The appeal and the cross-appeal are dismissed.
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.
Bazley v Curry,  2 S.C.R. 534; Jacobi v Griffiths,  2 S.C.R. 570; K.L.B. v British Columbia,  2 S.C.R. 403, 2003 SCC 51; McDonald v Mombourquette (1996), 152 N.S.R. (2d) 109, leave to appeal refused,  2 S.C.R. xi; K. (W.) v Pornbacher (1997), 32 B.C.L.R. (3d) 360.
Act to Incorporate the Roman Catholic Bishop of St. George's, S.N. 1913, 3 Geo. V, c. 12, ss. 1, 3, 5, 7.
Code of Canon Law, 1983, Can. 528.
Geoffrey D. E. Adair, Q.C., and Krista Springstead, for the appellant/respondent on cross-appeal (instructed by Adair Morse, Toronto).
Gregory B. Stack, for the respondents/appellants on cross-appeal (instructed by Stack & Associates, St. John's).
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