INDEX                                                      PARAGRAPH NO.

[1] On June 4, 1998 following the first phase of this trial, I held that the defendants The United Church of Canada (the "Church") and Her Majesty the Queen in right of Canada ("Canada") were vicariously liable for sexual assaults committed by the defendant Plint against the plaintiffs.

[2] In this judgment I deal with the remaining liability issues including the vicarious liability of the Church and Canada for perpetrators other than Plint, negligence or direct liability of the defendants, fiduciary duty, non-delegable statutory duty, limitation defences and the third party claims advanced by the Church and Canada against each other. Finally I assess the damages recoverable by each of the remaining plaintiffs.

[3] The Thomas case was settled prior to the delivery of these reasons. In addition, all but 7 of the 23 plaintiffs in the Blackwater and Barney actions whose claims were outstanding at the conclusion of the liability phase of the trial have settled their claims against the defendants. Accordingly these reasons deal solely with the claims of the remaining seven plaintiffs.

[4] This is an historic sexual assault case. It features the particular challenges that such cases present to a trier of fact. The events occurred many years ago, some as far back as the 1940's. Many of the alleged perpetrators are dead. Yet others who might have been available as witnesses have also passed away.

[5] The assaults described by the plaintiffs were extremely traumatic. They have spent many years and much energy in trying to put these events behind them. Then, for this litigation they have been required to recall these unhappy memories. They had to give statements and sworn evidence to strangers, many of whom were adversarial as representatives of the defendants. They have been questioned at length and in detail about these unhappy matters that they have spent so much time trying to forget or overcome.

[6] This is no criticism of counsel who were obliged in this case to test the plaintiffs' evidence: in so doing they were only discharging their duty to fairly represent the interests of their clients.

[7] The point I make is that the trial process in a case of this nature inevitably requires plaintiffs to dredge up from the distant past memories of extremely unhappy and traumatic events. This is so notwithstanding the fact that most have spent the better part of a lifetime trying to put these sad memories behind them.

[8] Another aspect in this type of case is that these assaults generally occur with only the victim and perpetrator present. Rarely are there other witnesses who can be called upon to either corroborate or challenge the parties' evidence of the assaults.

[9] The ultimate task of the trier of fact in a case such as this is to assess the evidence that is available and by applying the appropriate standards make findings of fact as to what likely occurred so many years ago.

[10] The more serious the allegations the greater the care that must be exercised when considering the evidence. As stated by the Supreme Court of Canada in Continental Insurance Co. v. Dalton Cartage Co. Ltd. et al (1982), 131 D.L.R. (3d) 559 at 563 per Laskin C.J.C.:

I do not regard such an approach as a departure from a standard of proof based on a balance of probabilities nor as supporting a shifting standard. The question in all civil cases is what evidence with what weight that is accorded to it will move the Court to conclude that a proof on a balance of probabilities has been established.

[11] This principle was recently considered and the leading cases summarized by Stromberg-Stein J. in V.(J.L.) v. H.(P.) (1997), 31 B.C.L.R. (3d) 155 at 189-190, paras. 117-120:

[12] In V.(J.L.) v. H.(P.) (1998), 109 B.C.A.C. 165 [1998] B.C.J. No. 1546, the Court of Appeal upheld the trial judge's analysis. Lambert J.A. stated:

[13] In the case at bar the plaintiffs advance most serious allegations. The case is also complicated by the passage of time. Some of the alleged wrongdoers have died and hence cannot come to court and deny the plaintiffs' allegations.

[14] There are also allegations of physical assaults committed by Mr. Andrews, the last principal of AIRS. Although he lived long enough to give evidence during the vicarious liability stage of this trial, Mr. Andrews died without having an opportunity to testify in court in response to the specific assaults alleged against him. None of the particulars of these assaults were canvassed with him during examinations for discovery.

[15] Another consideration here is the undisputed fact that dormitory supervisor Plint committed egregious acts of sexual assault against many of the young children who attended AIRS. This is not a case where the defence denies that any of the acts alleged by the plaintiffs ever occurred. To the contrary, for those plaintiffs for whom a criminal conviction against Plint has been entered, the Church and Canada admit that acts of sexual abuse did occur.

[16] While this makes my task perhaps somewhat easier with respect to the Plint assaults, I must nevertheless consider the allegations which are uncorroborated with great caution. (See Re Murray (1966), 60 D.L.R. (2d) 76 (B.C.S.C.) at p.81-82; J.M. Lumber King Limited v. von Transehe-Roseneck Estate (1988), 31 E.T.R. 243 (B.C.S.C.).

[17] The test the law requires is not whether the plaintiffs hold an honest belief that the events of which they complain occurred; rather, it is whether they have proven to the standard that the law requires that those events in fact occurred.

[18] Mr. Barney testified that he started at AIRS in 1962 or 1963 and that Plint's first assault took place at the end of his second year. He says Plint took him into his office and made Barney perform oral sex on him. He described a second incident in Plint's office where after physically beating him, Barney says Plint performed anal intercourse on him. Barney says he spent the weekend in the infirmary as a consequence.

[19] He described two other incidents in which he was forced by Plint to perform oral sex. One occurred when Plint saw he wasn't singing in the auditorium. Barney says Plint pulled him aside, started hitting him on the head, made him perform oral sex and told him to sing.

[20] Barney asked Mr. Andrews if he could change dorms and he described what Plint had been doing to him. He says Andrews responded by strapping him, telling him he didn't believe him and that he should stop saying bad things about the people that were taking care of him. He also says that when his mother came to the school for a visit he told her that Plint was doing bad things to him and really hurting him. Barney also saw Plint abusing another student.

[21] I conclude that Barney was sexually abused by Plint on the four occasions and in the manner he describes. I also accept his evidence that there were other sexual assaults which for the most part occurred in Plint's office/bedroom at night.

[22] Mr. R.F. went to AIRS at age 5 and spent nine years at the school. When he started, Mr. Caldwell was the principal. He was succeeded by Mr. Dennys and then, in turn, by Mr. Andrews. Mr. R.F. attended classes from grades one to six on the AIRS premises. He was a good student who enjoyed his classes and in his words "I found class to be a refuge from all the meanness in the main building."

[23] Mr. R.F. attended grades 7 to 9 in the Port Alberni school. When he reached grade 10 his parents had built a home 200 yards from AIRS and he lived there in grades 10 and 11. He says there were 21 people living in the house and he couldn't do homework. He also says he developed a drinking problem at age 12 at AIRS and when he was at home for those two grades he was drinking heavily. As a result he went to the Indian agent in Port Alberni and at Mr. R.F.'s request the agent arranged for him to board with a United Church minister during his grade 12 year.

[24] Mr. R.F. testified that he was first sexually assaulted by a fellow student when he was six. At age eight he was fondled by Mr. Hindmarsh who was at the school temporarily as a dormitory supervisor.

[25] He testified that the first sexual assault by Plint occurred when he was in Grade 7 and staying in Dorm No. 3. He says it occurred on a Saturday afternoon when Plint called him into his office. He recalls Plint trying to kiss him and says there was oral sex involved and mutual masturbation although it became very painful as Mr. R.F. was unable to ejaculate. Mr. R.F. also says Plint put him face down on his bed and "attempted to penetrate my anus, but couldn't so I screamed and he hit me ...". Plint then simulated intercourse between Mr. R.F.'s legs. Mr. R.F. says this happened on two occasions.

[26] Mr. R.F. says there were at least four more incidents of sexual assault by Plint after he moved to Dorm No. 2 and at least six after his move to John Ross Hall. While he did not particularize these at trial, he did say that these incidents typically occurred at night when Plint would take him to his room. Plint told him that if he ever told anyone about these events he would never see his parents again and would never go home.

[27] Mr. R.F. also testified that Plint assaulted him six times off the AIRS grounds when he took him to a motel in Port Alberni where Plint's father was living. Although he did not mention these incidents in his response to the interrogatories, I conclude that it is likely that these assaults occurred.

[28] The defendants admit that Mr. R.F. was sexually assaulted and a victim of attempted buggery by Plint between January 1961 and December 31, 1963. However the defendants also say that because Mr. R.F. did not give detailed evidence about what happened on each of the occasions when he says Plint assaulted him, the evidence is "insufficient to allow the Court to conclude that those incidents involved the sexual assault of Mr. R.F., if the Court accepts that those events happened at all."

[29] It is not surprising that Mr. R.F., like many of the other plaintiffs, would be either unable or unwilling to provide a detailed description of each separate incident of sexual assault that occurred. These events occurred many years ago. They involved an egregious violation of trust by Plint who occupied the role of a parent.

[30] Mr. R.F. gave graphic evidence of his being assaulted by Plint. That was not an easy thing to do. Because he did not go on to describe each and every incident he says occurred I do not conclude that they never happened. Rather I conclude, as admitted by the defendants, that he was sexually assaulted by Plint. I accept his detailed description of the two incidents he described. I further conclude he was sexually assaulted by Plint on the other occasions he describes which assaults likely involved mutual masturbation and oral sex.

[31] Mr. R.J. testified that he attended AIRS from 1949 to 1959. He attended grades 1 through 8 at AIRS and grades 9 and 10 in public schools in Port Alberni. He recalls when he started at AIRS that he attended classes in the morning while in the afternoon "we went out to pick potatoes in the back field". After the potato season he says "we went to school all day".

[32] He says he was sexually assaulted by Plint during his first year at the school. He says that Plint "fondled my genitals and vice versa" and that he forced Mr. R.J. to perform oral sex on him. He says these acts were forced on him by Plint and that Plint told him not to tell anybody of the assaults. Although he does not recall Plint saying what would occur if he did disclose, he understood what Plint said to be a threat and he recalls being afraid. The assaults occurred in Plint's office.

[33] Mr. R.J. gave evidence about one specific incident of sexual assault by Plint. He says that Plint assaulted him during his early and middle years at AIRS. However Mr. R.J. did have great difficulty relating to the court what actually occurred. With the agreement of defence counsel, R.J.'s counsel led his evidence of the specific incident involving Plint.

[34] After hearing his evidence I conclude that Plint assaulted him at AIRS on the occasion he was able to describe in some detail. I further accept his evidence that Plint threatened him if he disclosed and that he was afraid of Plint. This is entirely consistent with the evidence I heard from many of the other plaintiffs.

[35] It is also consistent with the rather obvious power imbalance between Plint and Mr. R.J. who was only nine years old when this assault occurred.

[36] It is more difficult to determine whether Plint's assaults continued. While Mr. R.J. has described being further assaulted, he did not say when these occurred or whether they were physical or sexual assaults. The defence argues that this precludes the court from concluding that he was assaulted on more than the one occasion he described.

[37] However after considering Mr. R.J.'s evidence I am satisfied that it is likely that Plint assaulted him sexually on more than the one occasion he was able to describe in detail to the court. However given his inability to provide more information about these assaults, I cannot conclude that they were any more severe in nature. I also cannot determine how many additional assaults occurred. What I do conclude is that there were an unspecified number of additional sexual assaults by Plint during the period described by Mr. R.J..

[38] M.J. testified she was sent to AIRS when she was five. She says that during her third year at AIRS one of the dormitory supervisors Mr. Peake started to assault her by rubbing his groin area on her. She says his practice was to take a few of the female students into his room, lock the door and carry out these assaults.

[39] Francis Tait testified that Peake used to expose himself in his bathroom where he could be seen in a mirror by female students. She also said that Peake fondled her while they travelled in the school vehicle. She related an incident in which Peake raped her in the school garage. She has not commenced any proceedings as a result of her attendance at AIRS.

[40] Ms. M.J. testified that when she turned 13 years of age she was selected to clean the apartment of then principal Caldwell who subsequently assaulted her. His living area was attached to one end of the AIRS building. She says the first assault occurred in Caldwell's bedroom after he caught her stealing a cigarette. She says Caldwell felt her breasts and vagina and then took his penis out and asked her to feel it.

[41] She says that the sexual assaults "happened several times after" this first incident. She testified that Caldwell raped her "quite often"; in her police statement she reported to the police that the rapes had happened "not that often."

[42] Her evidence about her age at the time of the assaults varied during the course of her testimony. She initially testified that the assaults occurred after she turned 13. In answering her interrogatories she stated she was 15 when Caldwell assaulted her. In her statement to the police she said she was 14 when Caldwell raped her after catching her stealing a cigarette.

[43] Ms. M.J. testified that the second assault took place "downstairs". She also says that this and the subsequent assaults occurred on Saturday afternoons. At this time Caldwell's children and grandchildren were living with him.

[44] During the second assault Ms. M.J. says that Caldwell raped her and after he finished told her to leave. She says she was bleeding and in pain. She was on her way to the playroom to see her sister when she collapsed on the stairs in the main part of the AIRS building. The matron called Caldwell who carried her to the infirmary. Ms. M.J. says she was put in the infirmary where she was hemorrhaging quite a bit. She says no doctors were called and that she stayed in the infirmary "for a long time". She says she was in the infirmary "during Christmas". This chronology conflicts with her recollection that these assaults began shortly after she turned 13 on December 27.

[45] There are a number of inconsistencies in Ms. M.J.'s evidence. She testified that she was sexually assaulted by Mr. Peake on three occasions when he rubbed against her. However in her interrogatories she stated she had no knowledge of any abuse committed at AIRS other than by Caldwell.

[46] At trial Ms. M.J. testified that she had a clear recollection of telling Caldwell about the assaults by Peake. However in answering an interrogatory about whether she had ever spoken with the principal, she said nothing about ever discussing these incidents of sexual assault by Peake. When asked in the interrogatories about her visits to the infirmary, she made no mention of the visit she says occurred after she had been raped when she had to stay in the infirmary while she was bleeding heavily.

[47] I find it difficult to see how Ms. M.J. could have forgotten about such a traumatic event if it occurred. This is especially so when she was answering interrogatories in the specific context of this case.

[48] She also says that while she was in the infirmary the nurse did not ask what had happened to her. She says Caldwell suggested to the nurse that it was a touch of polio. It is difficult to accept that a nurse when presented with a child who was bleeding heavily would not make inquiries as to what had caused the child's problems. It is also unlikely that a nurse would accept the explanation that the problem was due to a touch of polio.

[49] Shirley Alex attended AIRS from 1942 to 1955. She started cleaning Caldwell's apartment in 1949 and continued until 1955. She says she cleaned his apartment every day of the week including Saturdays and Sundays.

[50] She denied that Ms. M.J. ever cleaned the Caldwell apartment while Ms. Alex was present cleaning on either Saturdays or on weekdays. She says that was her job and that she would have known if Ms. M.J. cleaned the residence on a regular basis on Saturdays. She says that if there had been anyone else cleaning the apartment on Saturdays she would have been aware of it.

[51] Ms. M.J. testified that she never saw the Caldwell family in all the years she was cleaning the apartment. Yet Ms. Alex says that Caldwell's children and grandchildren lived at the apartment.

[52] Shirley Alex's evidence raises serious doubts as to the accuracy of Ms. M.J.'s recollections. It is not just a question of Ms. Alex not seeing any of the alleged assaults occurring. Rather she says clearly that Ms. M.J. was simply never present in the Caldwell living quarters on Saturdays or on any other day for that matter.

[53] While Ms. Tait's evidence does support Ms. M.J.'s contention of misconduct by Peake, her evidence as to what happened to her is rather different than Ms. M.J.'s recollection of being called into a room with other female students and fondled. I heard no evidence from any other student who was fondled in the way Ms. M.J. describes.

[54] Ms. Alex directly contradicts Ms. M.J.'s evidence with respect to the very serious sexual assaults said to have been perpetrated by Caldwell. I found Ms. Alex to be a good witness. She testified in a straight forward manner. She is not a party and there is no evidence of any motive on her part to be other than completely truthful. Accordingly when I consider the evidence in the context of the test I set out at the outset of these reasons, I must reluctantly conclude that Ms. M.J. has failed to prove her allegations to the required standard.

[55] I do accept that Ms. M.J. holds an honest belief that the events that she described from so many years ago in fact occurred. I also recognize despite my findings of fact that one or more of the events may have actually occurred. I am also cognisant of the possibility that one or more of the events that she has described not only occurred but that it might have caused or contributed to her inability to communicate what happened with sufficient clarity that would have enabled me to reach a different conclusion.

[56] However while I am aware of all of these factors, in the final analysis I am required to make findings of fact based on the evidence before me in accordance with the standard that the law requires. That analysis leads me to conclude that on all of the evidence I cannot find that it is more probable than not that these events occurred. In the result I have no alternative but to dismiss Ms. M.J.'s action.

[57] Mr. D.S. alleges that Plint repeatedly assaulted him. He says that Plint forced him to fondle Plint's genitals and that he made unwelcome and offensive sexual comments about him while he was bathing as well as threats and verbal intimidation.

[58] Mr. D.S. went to AIRS from 1959 to 1968. Plint was his dorm supervisor when Mr. D.S. was in dorms one and two. He says he was sexually assaulted by Plint when he was "approximately about eight" years old.

[59] He describes Plint as being friendly towards him, nurturing him and giving him from two to seven dollars on several occasions. He says on two occasions Plint held his hand and pulled him into his office. There he put Mr. D.S.'s hand on his pelvic area but, in Mr. D.S.'s words, "that's as far as I would go". Mr. D.S. describes finding any excuse to come up with to leave and "take off from there".

[60] With respect to frequency he was asked in chief: "This happened how many times?" He replied: "As far as I know, twice." I found Mr. D.S. to be a credible witness. I conclude that Plint forced him to fondle him through his clothing on the two specific occasions he related.

[61] Mr. M.W.(1) attended AIRS from 1964 to 1967. He says sexual abuse by Plint started towards the end of his first month at the school. The assaults occurred in Plint's office where he had a small sleeping area.

[62] Mr. M.W.(1) says the first incident occurred when Plint asked Mr. M.W.(1) to fondle him. He says Plint then performed oral sex on him. Mr. M.W.(1) says that this happened again a few weeks later although the second time Plint also forced Mr. M.W.(1) to perform oral sex on him. When he was forced to do this, Mr. M.W.(1) says he became sick and Plint hit him on the head. He says then Plint anally raped him. He testified "I think I about blacked out, I bit into my hand, the pain was so awful". He then testified "and that seemed to be the pattern".

[63] Mr. M.W.(1) testified that the sexual assaults took place for the three years that he was at the school. He says that in the "early going it seemed like the assaults were about one to three times a week and after that it was maybe once a week". He says that by June of his first year at AIRS almost his whole body would "numb out".

[64] I accept Mr. M.W.(1) evidence that he was assaulted by Plint in the manner he described on the first two occasions. I also find that similar assaults by Plint likely occurred from time to time during the remainder of his three years at the school.

[65] Mr. M.W.(2) alleges in his pleading that Plint fondled and masturbated him and that he was forced to fondle and masturbate Plint. Mr. M.w.(2) did not testify during the liability phase of the trial. The defendants admit that he was sexually and physically assaulted by Plint between January 1, 1961 and December 31, 1963.

[66] The plaintiffs advance the following negligence allegations:

1. The principals of the AIRS were negligent by:

a) Failing to conduct a reasonable investigation into the character, background or qualifications of various AIRS employees;

b) Continuing to employ various AIRS employees when the principals knew or ought to have known that the employees were paedophiles with a history of abusing students;

c) Failing to take any reasonable steps to prevent or put an end to physical or sexual assaults which the principals had knowledge were being committed by various AIRS employees;

d) Failing to investigate allegations of physical and sexual abuse by various employees after the abuse was reported by the Plaintiffs;

e) Failing to exercise reasonable supervision or direction over various AIRS employees which would have disclosed the physical and sexual abuse by those employees against the Plaintiffs.

2.     The Church and Canada failed to use reasonable care in assuring the safety and protection of the Plaintiffs by:

a) Hiring the school principals and various other employees and in permitting their continued employment;

b) Inadequately screening prospective employees prior to hiring them;

c) Failing to create or maintain a safe environment for the students at the AIRS;

d) Failing to monitor its supervisory conditions at the residential school. The following particulars are pleaded:

i) The Church knew or ought to have known that Plint and other AIRS employees were paedophiles and had histories of abusing students at the school;

ii) The Church knew or ought to have known of a significant history of sexual and physical violence at the school directed against students by its employees and despite such knowledge failed or refused to take any reasonable steps to specifically adopt hiring or personnel review processes designed to identify or remove such persons;

iii) The Church had knowledge through its employees, the school principals and other AIRS employees that Plint and other school employees were sexually and physically assaulting the Plaintiffs and despite such knowledge failed to take any reasonable steps to prevent or put an end to such abuse;

iv) The Church knew or ought to have known that the school principals were incompetent or failed to exercise reasonable care in the execution of their duty and, notwithstanding such knowledge, the Church continued to maintain the employment of the school principals;

v) The Church failed to investigate allegations of physical and sexual abuse by Plint and other AIRS employees against the Plaintiffs after such abuse was reported by them to the principals or other AIRS employees;

vi) The Church failed to exercise reasonable supervision or direction over the school principals, Plint and other AIRS employees or to implement programs or procedures for such supervision and direction which would have disclosed the neglect of duty by the school principals and the physical and sexual abuse by Plint and other school employees against the Plaintiffs.

[67] The following issues arise from the negligence pleadings:

a) Did the Church and/or Canada owe a duty at law to the Plaintiffs in connection with the allegations raised in the pleadings. If so the following must also be considered:

b) Did the Defendants, or either of them, have actual knowledge of the occurrence of sexual abuse at the AIRS;

c) Did the Defendants, or either of them, have constructive knowledge of the fact that the Plaintiffs were being sexually abused; i.e. should they have known;

d) If the Defendants, or either of them, knew or should have known that the Plaintiffs were being sexually abused, what steps should reasonably have been taken;

e) If reasonable steps had been taken, would those steps have prevented the occurrence of the sexual assaults.

[68] The Supreme Court of Canada has adopted a two stage approach to identifying the existence of the type of duty set out by the House of Lords in Anns v. Merton London Borough Council,[1977] 2 W.L.R. 1024. In Kamloops v. Neilsen, [1984] 2 S.C.R. 2 at 10 Wilson J. particularized the test as follows:

(1) is there a sufficiently close relationship between the parties...so that, in the reasonable contemplation of the [defendant], carelessness on its part might cause damage to that person? If so,

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

[69] This test was restated by the Supreme Court in Just v. B.C., [1990] 1 W.W.R. 385 at 398 where the Court cited Anns, for the following initial tests to determine if a duty of care exists:

[70] In the first phase of this trial which was restricted to the issue of vicarious liability, I held that the operation of AIRS was in the nature of a joint venture between Canada and the Church. In my view the findings in those reasons for judgment have decided the issue that there was a sufficient proximity on the part of both defendants to give rise to a duty of care owed to the plaintiffs.

[71] Because Canada is a defendant it is necessary to consider two further issues when considering the second part of the Anns test:

1. Whether applicable legislation either imposes an obligation on Canada to act or provides an exemption from liability to act;

2. Whether Canada is exempt from liability on the basis that the decision made by Canada arises from a policy decision.

[72] In Brown v. B.C., [1994] 1 S.C.R. 420 at 441 the court considered the distinction between policy and operational decisions as follows:

[73] In Brown the Court explicitly rejected the notion that decisions of policy are necessarily limited to so-called threshold decisions or broad initial decisions as to whether something will or will not be done. The Court expressly held that policy decisions can be made by persons at all levels of authority. It is the nature of the decision that determines whether it is a matter of policy and not the employment position of the person making the decision.

[74] In the case at bar the plaintiffs say that Canada was negligent for having had either inadequate or non-existent inspection policies for AIRS. They say the result of this was that a paedophile such as Plint was able to carry out his abuses at AIRS during the many years that he was employed as a dormitory supervisor.

[75] Canada's decision to involve itself with the Indian Residential Schools was clearly one of policy. In addition, under the Brown test, many of the decisions made by Canada to effect that policy could also no doubt be characterized as decisions of policy and not operations.

[76] However the allegations against Canada are that it failed to see that steps were taken, or taken adequately, to ensure that Indian children who were forced by Canada to attend the residential schools would not be subjected to the depredations of a sexual predator such as Plint.

[77] I do not accept the proposition that Canada can escape liability in negligence by characterizing this allegation as being entirely one of inadequate policy as opposed to a negligent failure to properly execute that policy.

[78] Here the plaintiffs contend that Canada (as well as the Church) either knew or ought to have known that Plint and other school employees were sexually and physically abusing the plaintiffs. I take that allegation to mean that whatever screen Canada had in place to protect the plaintiffs from predatory paedophiles such as Plint failed them. While some aspects of this could be characterized as policy, I believe that they are also allegations of failings that are substantially operational in nature.

[79] Here Canada is being taken to task for not only its policy of having Indian Residential schools such as AIRS, but also the steps that it took or failed to take to execute that policy. While Brown says clearly that Canada enjoys immunity from claims based on flawed or inadequate policy, the case also re-affirms that Canada is culpable when it fails in the execution of such policy. In my view Canada's alleged failings in the case at bar fall principally into the latter category. Accordingly I conclude that Canada as well as the Church owed a duty of care to the plaintiffs.

[80] Once a duty of care is found to exist it is necessary to consider the applicable standard of care. There are a number of factors that must be considered when defining the extent of the duty owed by Canada and the Church to the plaintiffs.

[81] The Supreme Court of Canada in Just at 405 summarized the consideration of the standard of care for governmental agencies as follows:

[82] In considering the standard of care imposed on a school board the Supreme Court of Canada in Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21 at 31 - 32 said:

[83] In addition, the standard of care to which the defendants will be held must also be considered in the context of the time period in which the alleged negligence occurred. Here the conduct of the defendants must be measured against the standards applicable to the era in question: the 1940's to the 1960's.

[84] Given today's heightened awareness of all issues surrounding child sexual abuse, the standards by which a defendant will be judged today are clearly materially different that the standards by which one would judge such conduct thirty to fifty years ago.

[85] This is not to say that sexual abuse by paedophiles of children in their care was any more acceptable in earlier times than it is today. Rather it is to say that when measuring the conduct of defendants such as the Church and Canada in this case, the relevant time period is particularly important when dealing with the question of the foresee- ability of paedophilic behaviour. This is because society's recognition and awareness of this deviant behavior has changed so markedly in recent years.

[86] This principle has been recognized in a number of recent decisions.

[87] In M.(M.) v. F.(R.) (1997), 52 B.C.L.R. (3d) 127, 101 B.C.A.C. 97 at para. 139 - 140 per Esson J.A.:

[88] G.(E.D.) v. Hammer (1998), 53 B.C.L.R. (3d) 89 para. 43 per Vickers J. at para.43:

[89] A.(C.) v. Critchley (1998), 166 D.L.R. (4th) 475 (B.C.C.A.) per McEachern C.J.B.C. at p. 504, para. 107:

[90] At trial in Critchley (1997), 35 B.C.L.R. (3d) 234 (S.C.) Allan J. stated at para. 196:

[91] So in cases involving claims of sexual assault the trier of fact must take care to assess the standard of care in accordance with the standards of the day prevailing at the time of the offences. Since there is no limitation period in this province for torts of a sexual nature, this can require a somewhat lengthy look backward in time. Above all it is essential in cases of historical sexual assault that the standard not be assessed using hindsight or by referring to more contemporary standards.

[92] A number of the plaintiffs (both settling and non-settling) testified that they reported at least some of the sexual assaults committed against them.

[93] Mr. Barney testified that he approached Mr. Andrews and told him of being assaulted by Plint. He described what happened then in the following words: "He [Andrews] took me to his office in the hallway down from - and he started thrashing me out and giving me shit for playing out in the front and not being with the rest of the people in the dorm, and he was getting me so scared I didn't really want to tell him about what Mr. Plint did, but I did anyway."

[94] Mr. Barney did not specify in his evidence as to what he said to Mr. Andrews about what "Mr. Plint did".

[95] Mr. Blackwater testified that in 1964 he went to Mr. Andrews office and "told what Plint was doing to me". He also says that he was too ashamed to tell any of the other students at AIRS what Plint was doing to him. Mr. Blackwater testified that during the following academic year he "told my Grade 6 teacher at G.W. Gray and she phoned Mr. Andrews". There is no evidence as to what the teacher may have told Mr. Andrews during this alleged phone conversation.

[96] Mr. Blackwater testified that just before he started Grade 7 he told his father that he did not want to return to the residential school. When his father asked him why he says he replied: "I told him there was a man there that was raping me all the time and he thought I just wanted to stay home, but he made a call and said he would check it out". There is no evidence as to what might have been said in such a telephone conversation.

[97] Melvin Good testified that while he was at Calgary Elementary School in 1965 or 1966, Mr. Andrews came to the school. Mr. Good said he was called out of the class by his teacher and that Mr. Andrews and two policemen were waiting for him. He says that Mr. Andrews and the policemen then took him to the motel across the road into rooms they had rented for the day. Mr. Good testified: "Mr. Andrews questioned me if Mr. Plint was molesting me, and I was too scared to say yes. I didn't - I said no. I was too afraid to say yes."

[98] It is difficult to conceive that an investigation into allegations of sexual abuse of children involving the RCMP would be conducted in this fashion, even in the mid-1960's. I consider it extremely unlikely that the RCMP would have allowed Mr. Andrews to conduct questioning during a criminal investigation or that such questioning would take place in a motel room.

[99] However if these events did occur, Mr. Good says he denied that Plint was abusing him. That denial could have helped to put suspicions about Plint's conduct to rest.

[100] Rudy Van Johnson testified that after the first assault by Mr. Plint, he was injured and was left with blood in his hair. His public school teacher at G.W. Gray School noticed and asked him what had happened. Mr. Van Johnson testified that he told the teacher that Plint had hit him. Mr. Johnson said: "I tried to tell him that he had brought me in his room, eh, but the teacher didn't listen to me." Mr. Van Johnson went on to testify that he told his teacher that Plint was trying to "kiss me up" and that he told the teacher "the dirty stuff [Plint] was doing to me".

[101] However whatever Mr. Van Johnson may have told the public school teacher at G.W. Gray, there is no evidence that any of this information was passed on by the teacher to anyone at AIRS or anyone else employed by either Canada or the Church.

[102] Mr. Van Johnson testified that after he ran away with Terry Johnson, he was picked up by the RCMP who asked him why he ran away. He says that he described to the RCMP the particulars of Plint's sexual assaults. However Mr. Van Johnson also testified, "But at that age I don't exactly remember how I told him, but I remember telling him in the sense of that - why I ran away, eh."

[103] To Mr. Van Johnson's own qualification as to what he is able to recall reporting to the police must be added his evidence as to what happened as a result. He says that in response to his graphic report of Plint's criminal assaults, the RCMP simply returned him to AIRS and spoke to Mr. Andrews. Mr. Van Johnson does not know what the RCMP and Mr. Andrews discussed. The RCMP left after their discussion with Mr. Andrews.

[104] It is difficult to accept that police officers would handle a complaint of such a serious nature so cavalierly. I consider it unlikely that Mr. Johnson was as specific with the police as he now remembers. In any event, I am not satisfied that I can conclude from his evidence that Mr. Andrews received a specific report from the R.C.M.P. that Mr. Van Johnson had been sexually assaulted by Plint.

[105] Eric Mack's sister also attended AIRS. He testified that while they were both there he told his sister about the assaults he had been subjected to. His sister advised him that, "I wasn't supposed to talk about it any more." Nevertheless, Mr. Mack testified that he also reported the sexual abuse to a nurse at the infirmary. According to Mr. Mack, the nurse went out and was going to talk to somebody "and never came back".

[106] This is difficult evidence to assess. The nurse is unidentified. It is difficult to accept that a school nurse would have simply left a sick child in the infirmary, much less a child who had reported that he had been sexually abused. However there is also no evidence that this unidentified nurse reported to anyone else whatever it was that Mr. Mack told her.

[107] Mark Watts testified that he told an unidentified native supervisor what Plint did to him and that the supervisor responded by telling Mr. M.W.(1) not to tell lies. He also testified that he went to Mr. Andrews' office and "I tried to talk to him there. No results there, just got a beating there for telling lies - saying stuff that - about one of the other supervisors. I was telling lies, that's all he said and I got the strap."

[108] Harry Wilson testified that he told one of the nurses at the Nanaimo Indian Hospital that, "I was being abused at the residential school but they said just none of her business, that's all they said, none of her business."

[109] It is difficult to imagine that any individual, much less an nurse employed by the Department of Indian Affairs (or the equivalent of the day) at an Indian Hospital, would respond to a child's complaint of being sexually abused at another Indian Affairs institution by stating that it was "none of her business".

[110] In his evidence-in chief, Mr. Wilson testified that in 1965 he was paged to the principal's office to pick up a parcel from home. While in Mr. Andrews' office, Mr. Wilson testified that: "I told Mr. Andrews what was going on, that I was being abused by Mr. Plint. He told me to get out of his office or else I'd ship you out."

[111] In court, Mr. Wilson testified that he had a very good memory of speaking to Mr. Andrews about being sexually abused. He testified that it stuck in his mind. However, Mr. Wilson had read to him the following interrogatory question and answer:

[112] Mr. Wilson testified that when he answered the interrogatories he had forgotten about the conversation he alleged with Mr. Andrews in which he reported the sexual abuse. Yet this interrogatory answer was prepared as part of this case. Mr. Wilson knew it would be relied upon. It is difficult to reconcile this interrogatory response with his evidence that he has a very good memory of speaking to Mr. Andrews about the Plint sexual abuse.

[113] During the vicarious liability phase of the trial Mr. Andrews testified that no student nor anyone else for that matter ever reported to him that any student had been sexually abused by Plint. He says that if he had ever been told, Plint would have been "out on his ear". Mr. Andrews testified that he was completely unaware of Plint's assaults. He said: "That's the part that hurts the most, that I couldn't pick out a paedophile". Mr. Andrews specifically denied that he had ever beaten any student for reporting to him abuse by Plint.

[114] If there were any sexual abuse at the school, Mr. Andrews says he would have fired the individual involved. There were two examples of this.

[115] Mr. Andrews says he fired Mr. Flynn, a dormitory supervisor, for being caught with a boy in his room. Mr. Wenezenki also gave evidence about that incident, which occurred in the spring of 1970. Mr. Wenezenki reported having seen Mr. Flynn with a boy in his room at the foot of Mr. Flynn's bed. Mr. Wenezenki did not know if Mr. Andrews had spoken to Mr. Flynn after the incident since Mr. Flynn left the building as Mr. Wenezenki was speaking to Mr. Andrews reporting the incident. However, Mr. Andrews's evidence is that he did fire Flynn. Mr. Flynn did not return to AIRS after that incident.

[116] Claire Hunston, a guidance counsellor employed at AIRS by Canada from 1966 to 1971, described the second occasion. She testified that a dormitory supervisor enlisted her help with respect to an allegation that a night watchman had molested a student in the night. Ms. Hunston says she reported the incident to Mr. Andrews and also to Mr. Janzen, the Crown Superintendent. Mr. Andrews fired the night watchman.

[117] What occurred when Mr. Andrews fired Plint is also instructive. Mr. Andrews testified that he did so after learning that on two occasions Mr. Plint had been found by Mrs. Andrews to have had a boy in his room, contrary to Mr. Andrews' rules. In his words:

[118] According to Plint, when he was fired by Mr. Andrews he was given no reason, was told not to stay in Port Alberni, and was complimented by Mr. Andrews for being a faithful servant. However when asked about wearing the ring that was remembered so vividly by so many of the plaintiffs that he struck, he could not recall. Finally, when asked if he committed these sexual assaults, Plint responded "I'd say no".

[119] I did not believe Plint when he testified. He was not a credible witness. His version of what occurred when he was fired is simply not believable and I reject it.

[120] Dean Wilson also testified about Plint's departure from AIRS. He says that he and about half a dozen other boys went to Mr. Andrews and told him that Plint had sexually assaulted him in May or June, 1968.

[121] Mr. Andrews is said to have replied: "I'll deal with this issue" and from then on Plint was not seen at the school again.

[122] However Mr. Andrews preceded Mr. Wilson as a witness at trial. Mr. Andrews was never cross-examined about the evidence that Mr. Wilson subsequently gave contradicting Mr. Andrews' evidence about Plint's firing. Mr. Andrews' subsequent death made it impossible for him to explain the difference in the evidence.

[123] At this stage it is difficult to determine whether in fact John Andrews was ever told about Plint's sexual assaults at AIRS. Although elderly, in failing health and virtually blind when he gave his evidence at trial, he resolutely and unequivocally denied that he had ever been told. Despite his advanced years and deteriorated physical condition, I found Mr. Andrews to be a man of firm conviction and one who I suspect was never much plagued by self-doubt.

[124] He had served in the Royal Navy. It is likely that with his military background he ran AIRS with a very firm management style. He no doubt insisted on maintaining strict discipline and good order. As part of that, corporal punishment was administered liberally at AIRS, as it was also used in schools throughout British Columbia until its abolition by the provincial government in 1972.

[125] I believe that it would have been a daunting prospect indeed for any of the plaintiffs to have gone to Mr. Andrews and complained to him about the sexual depredations of Plint. That is not to say that this might not have occurred; rather it is to say that to do so would have been understandably very difficult for the plaintiffs.

[126] I conclude that those who testified about communicating the sexual assaults at AIRS hold an honest belief that, at the time, they reported these painful events as they described. I also conclude that Mr. Andrews when he testified was equally convinced that he was never told about Plint's sexual assaults before he fired him.

[127] Resolving what likely occurred, particularly when one of the principal witnesses has died mid-trial after testifying, yet without being cross-examined on the point, is simply an illustration of the challenge facing a trier of fact when attempting to assess evidence about what occurred some 30 to 40 years ago.

[128] I am satisfied that the plaintiffs and the others certainly tried to report to Mr. Andrews and others. However it is clear that he and the others were persons in authority. The power imbalance would have been considerable. Given the other evidence I heard from the plaintiffs about conditions at AIRS I consider it likely that they would have approached reporting the sexual assaults to Mr. Andrews or others with considerable apprehension and trepidation.

[129] Some of their evidence suggests this. Their trial evidence is in most cases that they told "what Plint was doing to me" or "what Plint did". They did not testify as to what they said at the time they reported the sexual assaults.

[130] Because of the liberal use of corporal punishment at AIRS and Plint's predilection to physically abuse the students by hand, it could well be that when speaking to Mr. Andrews, the witnesses on this point did not in fact describe the acts of sexual assault committed against them by Plint. It could well be that they complained about many of the physical assaults or other justifiable grievances they had as students at AIRS and that with the passage of time they now believe that their reports to Mr. Andrews included particulars of Plint's sexual assaults.

[131] Had Mr. Andrews never testified, or had he been cross-examined on this point either at trial or during his examination for discovery, or had the evidence of the plaintiffs as to what was actually said at the time been more specific I might have come to a different conclusion.

[132] However on the whole of the evidence taking into account the passage of time since these events are said to have occurred and bearing in mind that the plaintiff's carry the burden of proof on this issue, I am simply unable to conclude that it is more probable than not that any reports of the sexual assaults were communicated to Mr. Andrews or any of the other AIRS employees prior to Plint being fired.

[133] Although I have concluded that the plaintiffs have failed to prove that Mr. Andrews or any of his predecessors were told of the abuse that was taking place at AIRS, the defendants can nonetheless be held liable in negligence if they ought to have known about these tragic events. It is on this issue in particular that one must pay close attention to the differences between the societal awareness of child sexual abuse then and now.

[134] On the undisputed evidence in this case one might think that it would be virtually impossible for the fact that children were being subjected to abuse at AIRS not to have become known in the wider community and hence by the defendants.

[135] However when the evidence is examined closely, one is drawn to the conclusion that the unspeakable acts which were perpetrated on these young children were just that: at that time they were for the most part not spoken of. Although today we may find such reticence astonishing, a court when assessing liability must take care to ensure that conduct is measured fairly having regard to the context of the particular time.

[136] Instructive as to the degree to which the perpetrators managed to keep their sexual activities secret is that several of the plaintiffs assumed that they were the only students being subjected to sexual abuse. For example, Mr. Blackwater testified that he was not aware that while he was being sexually assaulted the same thing was also happening to other boys in the dormitory.

[137] R.F. testified: "... truthfully, I thought I was the only one. That's why I never disclosed any of the assaults to anybody until ... after his [Plint's] first sentencing in Port Alberni."

[138] This is significant given that Mr. R.F. was, according to M.W.(1), one of the "go boys" who would on occasion round up younger boys such as Mr. M.W.(1) and bring them to Plint's room for some sexual activity. While Mr. R.F. could not recall his involvement in this process, he stated "I don't doubt M.W.(1)'s testimony".

[139] Mr. R..F. was considered to be one of the "older boys" by this time and he himself had been sexually assaulted by Plint. Yet he believed he was the only one of Plint's victims.

[140] Gilbert Johnson was also unaware of the prevalence of the sexual assaults. Referring to the sexual assaults by Plint, Mr. Johnson stated to the police that: "You know I - thought I was by myself gettin' this situation and yet I didn't know that there were other guys on the playground that were playin' with us that were goin' through the same thing. ... You know - I was so shocked when I heard that - that all these times I was so ashamed of it."

[141] Eric Mack told the police he used to think that he was the only one that was being abused.

[142] H.B. did not witness any boys being molested. Mr. H.B. summed up the prevailing attitude of the day at AIRS in response to a question about whether or not anybody discussed the sexual indiscretions alleged of Mr. Peake. Mr. H.B. said, "We don't talk about those things."

[143] This reluctance to speak up was echoed by some of the other plaintiffs. Roger Gray testified that he was "too ashamed and too afraid to be able to tell my school teacher that this was happening to me". M.J. testified that she too felt ashamed and that "I didn't want anybody to know what was happening to me." Ms. M.J. did not tell any of the other students or even her sister because she said her shame was so great that "I didn't want to breathe a word of [the abuse]". Finally, D.S. testified that he did not report the sexual assaults upon him because "I was too ashamed to".

[144] Several of the plaintiffs testified of the perceived need to keep these assaults secret. M.W.(1) Watts spoke to his brother M.W.(2) about an assault. M.W.(3) testified that he told M.w.(1) to "keep your mouth shut". Roy Joseph testified that he mentioned the assaults by Plint to one of his friends "but I didn't get into heavy detail as to what happened because he more or less said it should be hush hush ...".

[145] Mr. H.B. said he was a victim of an escalating pattern of sexual assaults in the early 1940's culminating in anal sex. However years later, as an adult, Mr. H.B. had contact with a young Gilbert Johnson whom he described as follows:

[146] Mr. H.B. says he told Mr. Andrews, "I don't know the reasons he's running away..." Mr. H.B. testified further that upon returning Gilbert to the school he was "talking with Mr. Andrews and trying to get some idea why Gilbert was running away."

[147] I accept Mr. H.B. evidence on this point. He was himself an apparent childhood victim of an egregious sexual assault at AIRS. Yet he did not entertain even the slightest suspicion of sexual assault when faced with a clearly troubled boy who was moved to repeatedly run away from that same institution. That being the case it is difficult to see how it can be said that other adults without the tragic benefit of such insight should have known that sexual abuse was an ongoing problem at AIRS.

[148] Some of the plaintiffs say they told their parents, but failed to convince them that they were being sexually assaulted at AIRS. Mr. Blackwater told the police that when he tried to report Plint's sexual abuse to his father, he "just assumed that I wanted to stay away from school. He told me I was lying."

[149] Mr. Barney testified that about two years after he started attending AIRS his mother visited at the school. Mr. Barney said that he told his mother about "the bad things Plint was doing to me, and that he was hurting me really bad and I was totally afraid of him, and I wanted to go home with her".

[150] Mr. Barney testified that his mother's reaction was as follows:

[151] Eric Mack testified that he went home for Christmas one year and told his parents about the sexual assaults by Plint. In describing their response to this report, Mr. Mack stated, "Nothing happened. Nothing happened because she, she didn't believe me at first. She - she figures I just wanted to get out of the - out of there."

[152] R.F. described an incident in the summer of 1964 when Mr. Plint drove into Mr. R.F.'s parents' yard. Mr. R.F. testified:

[153] The only conclusion one can draw is that in those times even parents, when faced with information that today would be treated very seriously, were not apparently alarmed. There is no evidence that these parents took any steps to attempt to safeguard their children from the abuse that was being reported to them.

[154] In saying this I am not suggesting any failing on the part of these parents; rather, this evidence in my view merely reflects the different societal awareness at that time concerning the issue of child sexual abuse.

[155] Jessie Oliver worked at AIRS from August, 1965 to June 1968. She lived in the residence for one year. She regularly talked with the older students in their lounge before suppertime. She testified that she had no idea that Plint was sexually assaulting children in the school. Ms. Oliver noted that a lot of the children were unhappy; she attributed that to being far from home.

[156] Jean Kidd worked at AIRS as a nurse from April 1969 to January 2, 1972. She was critical of the childrens' diet and medical record keeping at AIRS. She says she became aware of one sexual assault while she was at AIRS. In the spring of her last year a dormitory supervisor said a 14-year-old boy had a "personal problem that was embarrassing to talk about". She arranged for the boy to be seen by a doctor from Port Alberni who after examining the boy asked her if there were any homosexuals at the school. Ms. Kidd replied in the affirmative.

[157] This event occurred after Canada took over sole responsibility for AIRS and a number of years after Plint had departed. There is no evidence that Ms. Kidd was ever told who was thought to have committed this assault. This was the only assault of which she was aware during her time at AIRS.

[158] Keith Johnson was employed as a vice-principal at AIRS from July 1962 to March 1966. He testified that he heard no complaints from the students regarding supervisors. Levi Greenhalgh was employed as a teacher at AIRS from 1953 to 1964. He was not asked about his state of knowledge concerning the prevalence of sexual abuse at AIRS.

[159] Claire Hunston was a guidance counsellor at AIRS. She testified that at some unspecified date a dormitory supervisor reported to her that a night watchman had "molested" a student during the night. Mr. Andrews fired the night watchman. As a guidance counsellor Ms. Hunston would likely have been sensitive to the children's personal needs. There was no suggestion in her evidence that she considered that any broader form of preventative measures were required.

[160] Mr. Avery worked as a dormitory supervisor at AIRS during the fall term of 1948. Mr. Avery was never informed by anyone that physical or sexual abuse had taken place at the school while he was there. Mr. Avery said that there was nothing that would even cause him to suspect that sexual abuse was going on.

[161] Ian MacMillan spent just under two years at AIRS in the period between 1945 and 1949. He spent the first part of his time as a secretary to Mr. Caldwell, then he became a boys' supervisor. Throughout he lived on the premises.

[162] Mr. MacMillan testified that while he was at AIRS he never heard or observed anything which led him to suspect that children at AIRS were being sexually abused. He also testified that the sexual abuse of children was not something talked about back then; in fact he says it was never even thought about.

[163] Mr. MacMillan left AIRS in 1949. He testified about an incident in 1951 when he was working as a director of summer camps for another organization. He was alerted by a parent to a problem which occurred the previous summer. Apparently, a counsellor employed at the camp had been touching children. Mr. MacMillan conferred with the camp leader, a public high school principal. They confronted the counsellor and asked him if the allegation was true. He confirmed it. Mr. MacMillan left it to the camp leader to remove the counsellor from the camp.

[164] Mr. MacMillan was asked at trial if this incident alerted him to the possibility of sexual abuse as a risk faced by children in these circumstances. He responded that he did not believe so. He testified that in that day and age sexual abuse was a matter that was not talked about. Mr. MacMillan did not report this incident to anyone else. The practice of the day was to simply fire the individual.

[165] Mr. MacMillan's evidence about the "Ludford Incident" which occurred in 1960 at the Edmonton School is reviewed later in these reasons.

[166] Dr. Jack Ross testified that he was associated with the medical practice of Dr. Jones, who had the contract to provide medical treatment to Native Indians living in the Alberni Valley. From 1946 to 1950 Dr. Ross was at AIRS almost every day to provide whatever medical treatment was required for the children in residence.

[167] Dr. Ross testified that it was not part of his training as a physician to be instructed on how to identify and treat victims of sexual abuse. He says he was never given any reporting guidelines regarding sexual abuse. He stated that he did not think that people even thought about sexual abuse in that time period. The problem of sexual abuse, in Dr. Ross' opinion, has only come to the surface in the last 25 years. During Dr. Ross' time in medical school and residency, sexual abuse was hidden underground and "wouldn't come to the surface".

[168] Based on his examinations of students at AIRS, Dr. Ross never suspected that any were victims of physical or sexual abuse. He says none of the nurses ever reported to him any signs of physical or sexual abuse. Dr. Ross testified that if he had received a report in the nature of sexual abuse, the principal would have known, Dr. Jones would have known, and the Indian agent would have known.

[169] In my view the evidence of Dr. Ross is very significant. He was at AIRS virtually every day. He was a trained physician. Yet he never suspected the sexual abuse that was occurring at the residential school.

[170] Mr. Jack Gilbert had a 35-year career as a teacher, vice-principal and principal, with all but two of those years spent in the Alberni School District. From 1956 until 1968 Mr. Gilbert taught at Alberni District Senior Secondary School ("ADSS"). From 1968 until 1972 he worked as the vice-principal at a junior high school, E.J. Dunn Junior Secondary. In 1972 Mr. Gilbert moved to ADSS as assistant principal and was the principal from 1973 to 1989.

[171] Mr. Gilbert had no recollection of any child ever reporting to him any incident of physical or sexual abuse at AIRS. Mr. Gilbert testified that in the 1950's and 1960's, while he was a teacher in Alberni, he was not alive to the possibility of sexual or physical abuse being committed against children who were attending his school. Mr. Gilbert said:

[172] Mr. Gilbert testified that there was no sense that there were paedophiles loose in the school system. He did describe several incidents which today would likely be considered inappropriate behaviour. After Mr. Gilbert had become a principal in 1973 there was an incident where a teacher put his arms around a female student and made some inappropriate statements. The teacher was suspended for a week without salary. In describing this incident, Mr. Gilbert said:

[173] The next incident involved a young male teacher who engaged in inappropriate comments with a young female student. Mr. Gilbert spoke to the teacher at length and warned the teacher that if it went further the teacher would be in serious trouble.

[174] Both of these incidents were dealt with within the school system. Neither of them involved reports to the police or social workers.

[175] Mr. Gilbert testified that there were other situations throughout his time teaching in the Alberni area of a teacher getting involved with a younger person but Mr. Gilbert could not recall the details. He recalls that there were some suspensions but he does not know whether or not the individuals were fired. Each case was dealt with on an individual basis.

[176] Ron Lyon had a career in education spanning the period from 1946 to 1985. He went to Port Alberni in 1955 to become the principal of Port Alberni Elementary. He was the principal for six years before moving to become the principal of the Eighth Avenue Elementary School in Alberni for one year. He then became Assistant School Superintendent in Alberni for six years. Mr. Lyon remained involved with the Alberni school system until 1968. He returned to Alberni from 1972 to 1977 as Superintendent of Schools.

[177] Children from AIRS attended at Alberni Elementary School while Mr. Lyon taught there and he had regular contact with them. There were no AIRS students in school at Eighth Avenue Elementary. Mr. Lyon recalls the presence of the AIRS students in Alberni schools during his period as Assistant Superintendent.

[178] Mr. Lyon testified that he never heard any reports of abuse of students who were attending AIRS. He did hear reports of physical or sexual abuse of other students but these were "pretty rare." He testified that they did their best to solve the problem. If the allegations of abuse were very serious the teacher would be removed. This apparently was the standard approach of the day: the perpetrator was removed. If the incident were less serious then perhaps an apology would be offered to the parent. Mr. Lyon noted that the Teachers Association was "looking out after" the teachers and that as an administrator he was not free to say to a teacher that they shouldn't come back the next day.

[179] On cross-examination Mr. Lyon testified that he could recall two specific incidents involving inappropriate sexual behaviour towards a child on the part of a member of the teaching staff. Both occurred after 1972 while he was Superintendent in Alberni. He was asked if it was a "known process" to fire a teacher who had been accused of sexually inappropriate conduct and then allow somebody in the education system to hire that individual. Mr. Lyon answered that the problems in those days were quite different.

[180] If the administration could "bully" the teacher out of the system knowing that they did not have enough evidence to fire the teacher, then occasionally that would happen because it was impossible to get the teacher out of the system any other way. The hope was that the next employer would contact the previous employer to check the reference. The requirement to report suspected cases of child abuse did not come about until the late 1970's.

[181] Mr. Lyon testified that it never crossed his mind to think that children resident at AIRS were being sexually abused at that institution.

[182] Mr. Pearson spent his entire professional career, from 1951 to 1984, at ADSS. He worked as a classroom teacher for six to seven years before becoming a half-time counsellor in the late 1950's. He became a full-time counsellor in the late 1960's. He was a vice-principal from 1971 to 1984. Mr. Pearson testified that during the period of his employment, there were no directives, policies, or courses regarding sexual abuse in the schools. He testified that sexual abuse was not something people even thought of, let alone discussed.

[183] Mr. Pearson did say that the subject had become public by the time he had become vice-principal in 1971. However, he insisted that he received no policies, courses or directives from the Department of Education until the last four years of his career in the 1980's.

[184] Mr. Pearson recalled two incidents of sexual abuse. The first incident occurred after 1975 and involved a new teacher. That teacher was persuaded to resign. The second incident occurred in 1980.

[185] Mr. Pearson testified that he never had reported to him by anyone that a native student had been physically or sexually abused.

[186] Mr. Iverson was called as an adverse witness by Canada. Although, strictly speaking, Mr. Iverson was not employed in the public school system, he was questioned about the state of his knowledge of the prevalence of sexual abuse during the relevant time period. Mr. Iverson, who was involved with children in his Ministry and as a hockey coach, testified that the issue of sexual abuse was never in his mind. It was simply not an active consideration at that time. During cross-examination, Mr. Iverson testified that the issue of homosexuality was rarely if ever discussed. When it was discussed it was always something that "happened somewhere else".

[187] In my view the foregoing rather lengthy review of the evidence from those who were in the Port Alberni community at the relevant time belies the proposition that the sexual abuse that was occurring at AIRS was known in the wider community. As stated at the outset of this section, it might be difficult to understand how the egregious sexual abuse that was occurring at AIRS remained undiscovered. However the evidence from those who were then in the Alberni community is unambiguous. It was clearly a different time and societal awareness of child sexual abuse was extremely limited.

[188] An understanding and appreciation of this difference is critical when determining whether a defendant such as Canada or the Church in this type of case either "knew" or "ought to have known." This analysis requires a close examination of the evidence from those who were within the community at the relevant time.

[189] Canada produced documents relating to an incident involving Mr. Ludford, the principal at the Edmonton Indian Residential School. It was affiliated with the United Church. The "Ludford Incident" is summarized in a Memorandum dated December 5, 1960.

[190] Mr. Stotesbury, an ordained minister, visited the Edmonton Residential School and became suspicious of Mr. Ludford's dealings with the boys at the school. Mr. Stotesbury made inquiries of several of the senior boys and concluded that it was necessary to protect the students from Mr. Ludford. To do this he arranged to have several of the boys remain in the home of one of the staff members.

[191] Mr. Stotesbury then contacted individuals associated with the United Church and the police. Later on the Saturday (the day after Mr. Stotesbury discovered the abuse) a Rev. Macdonald made arrangements for Mr. Ludford to be admitted to a psychiatric hospital for treatment. He was subsequently charged and pleaded guilty to a charge of indecent assault.

[192] Ian MacMillan testified that after leaving AIRS he had become an ordained minister. In 1960 he was the Chairman of the Edmonton Presbytery of the United Church. He recalls being asked by Rev. Powell to assist in a situation at the Edmonton Residential School where it was suggested there was a paedophile. Rev. MacMillan went to the school and confronted the individual who admitted he had sexually touched a child. He was removed from the school and Rev. Powell took over. Rev. MacMillan learned that the abuser had been put in psychiatric care. He does not know what further investigations were carried out.

[193] There is also a reference in the documents to one of the teachers who was directly employed by Canada at the Morley Indian Residential School which was affiliated with the United Church. The teacher was charged and convicted for "homosexual offences against Indian pupils".

[194] In 1939 there was an incident at Kuper Island Indian Residential School which was affiliated with the Catholic Church. Canada supported a full investigation. The Director of Indian Affairs in Ottawa wrote to the investigating provincial Deputy Attorney General as follows:

[195] Canada also had an investigation carried out by Inspector Barry. The staff members against whom complaints were made were removed.

[196] The issue is whether these incidents were such that either Canada or the Church ought to have foreseen the risk of sexual abuse occurring at other residential schools. There are references to five incidents of sexual abuse at residential schools in the documents produced: Kuper Island in 1939, Ludford in 1960 at the Edmonton Residential School, the 1963 Pooley incident at the Morley Indian Residential School and two others. Edmonton and Morley were affiliated with the United Church. Those incidents resulted in criminal convictions.

[197] The documents show that on each of the five occasions where sexual abuse was reported, Canada took steps to investigate and eliminate the danger as well as bring in the police. Three of these reports involved actual incidents of abuse and two involved only rumours. The three incidents of 1939, 1960 and 1963 all resulted in police investigations.

[198] The issue is whether five incidents over a span of five decades, considered in light of the number of schools and residences across the country and the standards of the era in question, raised sexual abuse as a foreseeable risk in the system such that the Church and Canada ought to have done more at AIRS to prevent Plint's depredations. I conclude it did not. The incidents were relatively rare. The three confirmed cases over a thirty year period were not sufficient to have required the Church or Canada to take any extraordinary steps or procedures to protect against paedophiles at the residential schools.

[199] In my view the evidence falls short of proving that reasonable people of the day should have known of the sexual assaults which occurred at AIRS.

[200] In many cases, the plaintiffs themselves did not know that other children were being sexually abused at AIRS. Even Mr. R.F., himself a victim of sexual abuse, did not recognize as he brought younger boys to Plint's room that those boys were being victimized as well. Several plaintiffs testified of their reluctance to speak to anyone of the assaults they had suffered, either because of their sense of shame, or out of fear, or, as H.B. said, because "we didn't talk about those things".

[201] The reaction of the parents to reports from their own children demonstrates either or both of the following:

(a) the Plaintiffs were not as clear then as they remember now in describing the sexual assaults they suffered;

(b) the matter of an adult sexually abusing a child was virtually unthinkable - at least unbelievable - even to parents of the victims. If parents of the victims, when faced with specific reports of sexual assault, from the mouths of their own children, did not take any steps to investigate or address those specific reports, it is difficult to say that other adults who did not have even the suspicion that sexual abuse was a possibility at the institution, should reasonably have been expected to have taken steps to address a problem of which they were not aware.

[202] The evidence in this case is that the fact of sexual assaults taking place at AIRS did not even occur to adults of the day. That was so whether those adults dealt with the AIRS residents in the public school system or as employees of AIRS itself. Those adults even included a medical doctor who regularly attended AIRS and examined the children.

[203] If there was an incident of sexually inappropriate conduct by an adult toward a child, either in the community of Port Alberni, the medical community, the education community, or the Indian education community, it was viewed as an isolated incident, not as evidence of a potentially systemic problem. Sexual abuse was something "that happened somewhere else".

[204] The contemporaneous knowledge documents also show how the issue of sexual assaults of children could remain unrecognized. There were very few reports of its occurrence. in the historical archives relating to residential schools in Canada. Officials of the United Church were made aware of only two incidents, both in the 1960's at two separate residential schools in Alberta. Canada was also aware of the 1939 incident at Kuper Island.

[205] In my view there is insufficient evidence to support an inference that a reasonable adult associated with residential schools would have considered these instances to be suggestive of a systemic problem which required further investigation. In fact the only evidence is in many respects to the contrary: such reports were considered to represent isolated acts which could properly be addressed by removing the perpetrator from the institution.

[206] In summary, I conclude that the evidence does not support the conclusion that the Church or Canada should have known that the plaintiffs were being sexually abused at AIRS.

[207] However notwithstanding my conclusion that the defendants neither knew nor ought to have known about the sexual abuse at AIRS, was their conduct at the time reasonable? What additional steps, if any, should they have taking in any event to prevent the sexual assaults at AIRS?

[208] The plaintiffs have made the following allegations:

a) That the Defendants or either of them failed to take reasonable care in hiring school principals and other employees at the AIRS;

b) That the Defendants or either of them failed to properly monitor or supervise the principals or other AIRS employees thereby allowing the continued employment of those employees and facilitating ongoing abuse;

c) That the Defendants or either of them failed to create or maintain a safe environment for the students at the AIRS;

d) That the Defendants or either of them failed to properly investigate allegations of physical and sexual abuse by the principals, Plint and other AIRS employees.

[209] The plaintiffs must establish that there were steps available to the defendants, which a reasonable person of the day would have taken. However the plaintiffs did not lead any evidence on this point. The only evidence relating to these issues came from witnesses called by Canada and the Church.

[210] That evidence demonstrates that the standards of conduct of the day were much different than today: background checks of new employees were not conducted; people were not alive to the possibility of sexual abuse and therefore did not specifically watch for it; and the rare report of sexual abuse was treated as an isolated incident.

[211] Mr. Andrews gave evidence as to the hiring of Plint for Plint's second term as an employee at AIRS beginning in 1962. He says that he contacted Mr. Caldwell about Plint and also spoke to Mr. Peake, who was familiar with Plint from his first period of employment at AIRS. After receiving favourable reports, he interviewed Plint. Mr. Andrews testified that it was his practice to contact previous employers when hiring dormitory supervisors. No evidence was led as to the hiring practices of Mr. Caldwell or Mr. Dennys.

[212] There is no evidence to suggest that reasonable employers at that time would have conducted a more extensive investigation than the reference check and the personal interview carried out by Mr. Andrews for Plint.

[213] There was evidence of the hiring practices of the day used by people in the educational field. Mr. Lyon testified that when he was hiring teachers he checked their references. In the absence of strong suspicions about an applicant, there were no criminal record checks. Mr. Lyon was aware of the fact that it was difficult to find qualified people to work on the staff at AIRS given the low salary levels. Port Alberni at the time had a thriving mill-town economy with most people being employed at relatively high paying jobs.

[214] Harry Pearson testified that he went to Victoria College and the University of British Columbia to interview and hire teachers. In the late 1950's to the late 1960's Mr. Pearson testified that schools had to "take what we could get" with respect to employees. He says that many of those that were hired turned out to be unsatisfactory.

[215] Mr. Gilbert testified that there were no fingerprints taken or criminal records checks done of applicants for teaching jobs. His practice was to interview applicants. He would then make verbal inquiries of people he knew around the province who were in a position to provide some insight into a particular job applicant. Those are the same steps followed by Mr. Andrews when he hired Plint in 1962.

[216] Mr. Gilbert also testified about his coaching experience as a young man in Port Alberni where a lot of children played basketball in what was considered a commercial league. When he started coaching he was neither fingerprinted nor asked to submit to a criminal records check. He was not asked to disclose whether he had a sexual interest in young people. When he volunteered, he was only asked about his experience and interest.

[217] Mr. Avery testified that Principal Caldwell interviewed him over the telephone for his position as a dormitory supervisor. Mr. Avery did not recall if he was asked about his references. Mr. Iverson testified that background checks were not done on volunteers for Church activities.

[218] Clearly these hiring standards differed markedly from today's. Yet it is the standards that were in use over thirty years ago by which the conduct of the defendants must be measured. I conclude that with respect to the plaintiffs' allegations concerning the hiring of the principals and other domestic staff at AIRS, the plaintiffs have not proved that the hiring procedures utilized for those individuals fell short of the reasonable standards of employment practice of the day.

[219] The plaintiffs also say that the defendants failed to properly monitor or supervise the principals or other AIRS employees. However they led no evidence that the standard of monitoring and supervision employed at AIRS was not in keeping with the standard accepted as reasonable over the relevant time period at Indian residential schools, or at other residential institutions.

[220] The evidence does show that AIRS was regularly inspected by agents acting for Canada. Canada's inspectors commented upon such things as the health conditions of the children at the School, the diets supplied to the children, the degree of supervision, the adequacy of the nursing and health care facilities for the children and a variety of matters concerning the general welfare of the children.

[221] There is no evidence to suggest that different standards of monitoring and supervision were in place, or should reasonably have been in place, at other residential institutions than AIRS. Without such evidence it is difficult to conclude that the system of monitoring and supervision at AIRS was below the reasonable standard of the day.

[222] The plaintiffs also contend that the defendants failed to create or maintain a safe environment for the students at the AIRS. Of course we know today that given the depredations of Plint that AIRS was clearly a most unsafe environment.

[223] But the issue is not whether the environment at AIRS was unreasonably unsafe based on what we know today or when measured against today's standard. Rather the issue is whether the defendants fell short of their obligation to provide a reasonably safe environment at AIRS having regard to the standards of the time.

[224] There is no evidence of that historical standard that would allow me to conclude on a balance of probabilities that the environment at AIRS was unreasonably unsafe when assessed in the context of the standards of the day within either the residential schools or the broader community.

[225] The reports from Canada's inspectors suggest that, in fact, AIRS was, by the standards of the day, a reasonably safe environment for the children. For example, in a report dated November 23 and 24, 1954, the Regional Inspector of Indian Schools for B.C. concluded:

[226] A similar document, from Mr. Andrews' tenure, written by the District Superintendent of Schools on June 18, 1965 states:

[227] The plaintiffs also allege that the defendants failed to properly investigate the allegations of physical and sexual assault made against the principals, Plint and other AIRS employees. I earlier concluded that the plaintiffs have not proven to the requisite standard that there were reports made of sexual abuse prior to Plint's dismissal.

[228] I conclude that both Canada and the Church did owe a duty of care to the plaintiffs with respect to the matters raised by the allegations in these actions. I also conclude that the plaintiffs have failed to establish that either Canada or the United Church had actual knowledge of the sexual assaults being committed upon these plaintiffs.

[229] I conclude that the evidence does not establish that, aside from the perpetrators themselves, other adults employed at the AIRS, including the principals, had actual knowledge of the occurrence of these sexual assaults. As a result, the evidence is insufficient to prove that these defendants should have known that these sexual assaults were occurring.

[230] The assaults were carried out in secret. Some of the children thought that they were the only boys being assaulted. Others, themselves victims of sexual abuse, did not suspect that that sort of behaviour carried on after the period of their own abuse. Even some parents, when faced with specific reports from their own children that they were being sexually abused, did not conclude that the abuse was a reality. While there was evidence of some rare instances of sexual abuse in other residential schools, those instances were, in the manner of the day, considered to be isolated occurrences rather than evidence of any systemic problem.

[231] Even if it could be said that the defendants or either of them knew or should have known of the occurrence or risk of these sexual assaults, there is no evidence as to the preventative steps which ought reasonably to have been taken, during the period in question to address the possibility of these sexual assaults.

[232] Accordingly I conclude that the plaintiffs have failed to discharge the onus of proof in support of their allegations in negligence against Canada and the Church. These claims must therefore be dismissed.

[233] The plaintiffs' breach of fiduciary duty allegations are a restatement of their negligence allegations with the addition of several claims specific to the breach of fiduciary duty allegations. The plaintiffs say that Canada breached its fiduciary duty by removing the plaintiffs from their communities, homes and families and causing them to be transported and placed at AIRS, depriving them of family love and guidance, friendship and support of their community, and knowledge of the language, culture, customs and traditions of their nation.

[234] As against both Canada and the Church, the plaintiffs allege a breach of fiduciary duty in operating a residential school whose students and residents, including the plaintiffs, were systematically subjected to abuse, mistreatment, and racist ridicule and harassment, particulars of which include:

a) isolation from family and community;

b) prohibition of the use of Native language and the practice of Native religion and culture;

c) use of racist epithets, sexual and physical violence, physical beatings, abuse, degradation and humiliation as forms of discipline, training or punishment;

d) creation of an environment of coercion and fear; and

e) overcrowded and inhuman residence conditions.

[235] In Norberg v. Wynrib, [1992] 2 S.C.R. 226 at 230 the Supreme Court of Canada adopted the following three step analysis in identifying fiduciary relationships that give rise to fiduciary obligations:

1. the fiduciary has a scope for the exercise of some discretion or power;

2. the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests;

3. the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

[236] The Church says that it did not have the ability to unilaterally exercise any discretion or power so to affect the plaintiffs' legal or practical interests at AIRS. It says that Canada's policies dictated the interests of the plaintiffs. The Church argues that it could only recommend increases in funding or changes in policy and that the ultimate approval for any change rested with Canada.

[237] However in finding both defendants vicariously liable to the plaintiffs I concluded that the Church and Canada had a relationship analogous to a joint venture. In those reasons I concluded that the Church had at least some scope for the exercise of discretion or power. It is also clear that through that joint venture the defendants could unilaterally affect the plaintiffs' interests and that the plaintiffs were peculiarly vulnerable.

[238] The British Columbia Court of Appeal in Critchley, recently questioned the ever-widening application of the principles of fiduciary duty to cases which do not properly give rise to this type of claim. McEachern C.J.B.C. noted at 496, para.74:

[239] The Chief Justice then went on to say at paragraphs 77-78:

[240] After reviewing some of the cases from the Supreme Court of Canada dealing with the issue of fiduciary duty, McEachern C.J.B.C. concluded, at paragraph 85:

[241] This decision was applied by Lowry J. in H.(J.) v. B.C., [1998] BCJ No. 2926 (Q.L.)(S.C.) At para.37 he stated:

[242] Lowry J. then referred to the decision in A.(C.) v. Critchley saying at paragraphs 41 and 42:

[243] Critchley was applied by the Court of Appeal in EDG v. North Vancouver School District No. 44, 2001 BCCA 226. In EDG the court held that its earlier decision in Critchley precluded the plaintiff from succeeding in her claim for breach of fiduciary duty against the School District. The court held that Critchley requires that a fiduciary personally take advantage of a relationship of trust or confidence for his or her own direct or indirect personal advantage before recovery for breach of fiduciary duty is possible.

[244] As stated by Lowry J., the standard of care to be applied is not what others would do as in negligence law. Rather the fiduciary duty is breached when a defendant acts dishonestly or personally takes advantage of a relationship of trust or confidence for his or her own direct or indirect personal advantage.

[245] Plint was clearly taking advantage of a relationship of trust for his own benefit by committing his atrocious assaults. While this is an example of a breach of fiduciary duty his conduct also demonstrates the limits of fiduciary liability in a case of this nature.

[246] To find a breach of fiduciary duty there must be conduct that is dishonest or is perpetrated for personal advantage in a relationship of trust and confidence. On the evidence in the case at bar is this what either Canada or the Church really did?

[247] In my view the answer is "no". There is simply no evidence of dishonesty or intentional disloyalty on the part of Canada or the United Church towards the plaintiffs which would make it permissible or desirable to engage the law relating to fiduciary obligations. I include in this conclusion the more general complaints of the plaintiffs relating to linguistic and cultural deprivation. In my view the plaintiffs have failed to demonstrate that either Canada or the Church were acting dishonestly or were intentionally disloyal to the plaintiffs.

[248] This is not to suggest that the Indian Residential School policy in this country was not flawed. Many have concluded retrospectively, with ample justification, that the policy was badly flawed. However even a badly flawed policy does not necessarily equate to a breach of fiduciary duty in law. It is only when the flawed policy contains within it the necessary indicia of dishonesty or disloyalty that the breach of fiduciary cause of action is engaged. Such indicia with respect to Canada or the Church is simply not present in the case at bar.

[249] The Indian Act, S.C. 1951, c.29 provides with respect to schools:

113. The Governor in Council may authorize the Minister, in accordance with this Act,

(a) to establish, operate and maintain schools for Indian children,

(b) to enter into agreements on behalf of His Majesty for the education in accordance with the Act of Indian children, with

...

(v) a religious or charitable organization.

114. The Minister may

(a) provide for and make regulations with respect to standards for buildings, equipment, teaching, education, inspection and discipline in connection with the schools,

(b) provide for the transportation of children to and from school,

(c) enter into agreements with religious organizations for the support and maintenance of children who are being educated in schools operated by those organizations, and

(d) apply the whole or any part of moneys that would otherwise be payable to or on behalf of a child who is attending a residential school to the maintenance of that child at that school. [emphasis added]

[250] Relying on the use of the word "may" in the sections, Canada says that these do not prohibit the delegation of this statutory responsibility. Canada argues that this is what it did in its agreements with the Church.

[251] In Lewis v. B.C., [1997] 3 S.C.R. 1145 the Supreme Court of Canada found the statutory responsibility in that case to be non-delegable based on the wording in the relevant legislation which stated:

[252] Because this mandatory language does not appear in the Indian Act, Canada says that its duty could be delegated.

[253] However the Supreme Court in Lewis did not say that in the absence of words such as "shall direct" that a statutory duty is delegable.

[254] In my view to answer this question one must consider the Indian Act as a whole and the nature of the powers conferred on Canada. I believe that the legislation is clear: Parliament intended Canada to have control over virtually every aspect of the lives of Indians. Control over their schooling was but one category.

[255] The pervasive control granted by Parliament in the language of the Act to Canada over every aspect of the lives of Indians is not consistent with a delegable statutory duty. While there is no doubt that Canada had the statutory authority to enter into the educational contracts with the religious organisations, its statutory duty in respect of Indians was not thereby vacated.

[256] Canada was the guardian of the plaintiffs under the Indian Act and as such owed a duty of special diligence to them. I earlier found both Canada and the Church vicariously liable for the assaults committed by Plint.

[257] In M.B. v. British Columbia, 2001 BCCA 227, a former foster child recovered a judgment against the Crown arising from a sexual assault by a former foster parent. In dismissing the appeal the court held that the Crown could be both vicariously liable for the sexual assault as well as liable for breach of its non-delegable duty.

[258] The vicarious liability arose from the court's analysis of the "true nature of the relationship between the parties". The non-delegable liability arose from the relevant provisions of the provincial child protection legislation and on the basis of policy considerations similar to those enunciated by the Supreme Court of Canada in Critchley ([1999] 2 S.C.R. 534).

[259] Given the very high standard of care imposed on Canada under the provisions of the Indian Act and given the virtual absolute control over the lives of native peoples conferred on Canada under that legislation, I conclude Canada failed to discharge its statutory obligations to the plaintiffs in this case. As was the case with the provincial government in M.B., Canada in the case at bar owed a duty of special diligence to the plaintiffs. I conclude it fell short of discharging its duty in this case.

[260] In British Columbia no limitation period applies to a cause of action based on sexual misconduct, including sexual assault. The Limitation Act, R.S.B.C. 1979, c. 236 states:

3(4) A person is not governed by a limitation period and may at any time bring an action ...

(k) for a cause of action based on misconduct of a sexual nature, including, without limitation, sexual assault,

(i) where misconduct occurred while the person was a minor, and

(ii) whether or not the person's right to bring the action was at any time governed by a limitation period;

(l) for a cause of action based on sexual assault, whether or not the person's right to bring the action was at any time governed by limitation period.

[261] In J.P. v. Sinclair et al (1997), 93 b.c.a.c. 175, at para. 17 the Court of Appeal held that the phrase "based on misconduct of a sexual nature" encompasses actions in negligence and vicarious liability against the employer of a tortfeasor:

[262] In my view the phrase "misconduct of a sexual nature" is not to be interpreted narrowly. It includes all matters that are ancillary and reasonably related to the tort of sexual assault, such as a physical assault that occurs as part of a sexual assault.

[263] In the case at bar the plaintiffs have advanced claims which are not based on "misconduct of a sexual nature". They are claiming damages as a result of only physical and not sexual assaults. Their breach of fiduciary duty allegations include isolation from family and community, prohibition of the use of Native language, religion and culture, use of racist epithets, physical beatings, abuse, degradation and humiliation, creation of an environment of coercion and fear, overcrowded and inhumane residence conditions, and serving of rancid food.

[264] The issue is whether these claims are statute barred.

[265] The statements of claim in these actions were filed in 1996. The Church pleaded a limitation defence from the outset; no responsive replies were filed by the plaintiffs.

[266] The defendants say that the relevant limitation period is the two-year limitation set out in Section 3(1)(a). That section relates to actions for damages "in respect of injury to person or property, including economic loss arising from the injury, whether based on contract, tort or statutory duty". Alternatively, they say the claims alleged would be covered by the general limitation period set out in Section 3(4) which provides "[a] any other action not specifically provided for in this Act or any other Act shall not be brought after the expiration of 6 years after the date on which the right to do so arose."

[267] Under s. 7 of the Limitation Act, the running of time was postponed until each plaintiff reached 19 years of age.

[268] Plint left AIRS in 1968. Therefore he could not have committed any sexual assaults at the school after that year. If one adds the maximum 19 years that any plaintiff could theoretically have been a minor following 1968, plus a further six years for the longest limitation period available to any of the plaintiffs after attaining their majority, one reaches 1993.

[269] Absent a postponement under s. 6 of the Act, 1993 was the latest date by which any claim could have been filed for other than "conduct of a sexual nature".

[270] The earliest writ in these actions was filed in 1995, well after the latest theoretical expiration of the limitation period based on the assumptions most generous to the plaintiffs.

[271] The plaintiffs argue an entitlement to a postponement under s. 6 of the Act. However as noted above, this was never pleaded. They contend that their bare replies serve to join issue with all of the defences raised by Canada and the Church, including the limitation defence.

[272] Is a plaintiff who seeks a postponement of the applicable limitation period under s. 6 required to do more than file a reply joining issue with the asserted defences?

[273] Since a postponement removes what would otherwise be a good defence to a plaintiff's claim, it is in the nature of an affirmative plea, which must be specifically pleaded. To succeed in a postponement claim, a plaintiff must assert in its reply pleading (thereby giving notice to the defence) and then subsequently prove the material facts that it says support its entitlement to a postponement.

[274] I agree with Lowry J. who stated in H.(J.) v. B.C., at 26, para. 138:

[275] Even if I am incorrect in the pleading requirement, the onus is still on the plaintiffs to justify their delay in commencing claims that are time barred. Here they led no evidence to establish that the postponement provisions of the Act ought to apply in this case.

[276] In Gray v. Reeves (1992), 89 D.L.R. (4th) 315 (B.C.S.C.) Hall, J. found that the plaintiff had met the requirements of the Limitation Act with respect to justifying an eight year delay, and establishing a postponement of the two year limitation period which would otherwise (as the legislation stood at that time) have barred her claim for sexual assault. In that case it is stated at 329:

[277] In the case at bar, by contrast, the plaintiffs proffered no expert or other evidence to excuse delays of up to 40 years, or to establish that the postponement provisions of the Act apply to any of their claims which are not exempted from limitations under section 3(4)(k) and (l).

[278] In Novak v. Bond, [1997] 1 S.C.R. 808 the Supreme Court of Canada held that when applying this type of postponement provision the court must adopt the perspective of a reasonable person who knows the facts that are within the plaintiff's knowledge and who has taken the appropriate advice a reasonable person would seek on those facts. Time does not start to run until this reasonable person would conclude that someone in the plaintiff's position could, acting reasonably, in light of his or her own circumstances, bring an action.

[279] In my view this test requires at least some evidence from a plaintiff. In Novak the plaintiff testified as to her decision not to sue. No such evidence was led in the case at bar.

[280] I conclude that even if the plaintiffs had properly pleaded the issue of postponement there is no evidence of any facts that would entitle them to a postponement. Since the burden of proving this rests on the plaintiffs their submission must fail.

[281] Accordingly, pursuant to the provisions of the Limitation Act, all of the plaintiffs' claims with the exception of those based on misconduct of a sexual nature are dismissed.

[282] I have earlier held each of the Church and Canada vicariously liable for the plaintiffs' recoverable claims. Each defendant claims to be entitled to indemnity or alternatively contribution from the other.

[283] In my prior reasons I outlined the respective roles of Canada and the Church at AIRS. I likened their relationship to a joint venture. The question here is whether either has a basis for complete indemnity from the other and if not, the respective percentage of fault that each should bear.

[284] The Church says that it was an implied term of its relationship with Canada that Canada would "assume responsibility for any claims arising out of the school premises or the operating of the school and would indemnify the Church against such claims."

[285] In 1959, as part of ongoing discussions between Church and Indian Affairs officials the matter of insurance for vehicles in use for Indian residential schools arose.

[286] The system of Crown control of the spending at the residential schools changed in the late 1950's from one of per capita grants to one of controlled spending.

[287] Under the per capita grant system if the Church wished to purchase general liability insurance they could do so from the funds supplied by Canada. However, once the financing was placed on a cost controlled basis, the Church was required to obtain the approval of the Treasury Board to include the cost of general liability insurance as a "operational expense".

[288] Before the 1962 agreement there was a submission by Indian Affairs to Treasury Board dated August 31, 1959. It noted that Indian residential schools were operated by religious denominations: "who have expressed great concern over possible actions which might arise not only in connection with the operation of vehicles but also in the event of death or injury to a person on school property and that the religious order would be liable along with the principal if the injury was caused by the negligence of any of the church employees acting within the scope of their employment."

[289] The submission went on to note that

[290] The submission then recommended:

[291] However this application for broad indemnity was turned down by the Treasury Board by letter of September 29, 1959 as follows:

[292] In its refusal the Treasury Board noted that the undertaking to indemnify in respect of accidents involving Crown owned vehicles would be incorporated in formal agreements with religious denominations.

[293] This was done in this case. Following consultation with Church officials, including Rev. Joblin, clauses 28 and 29 (later 29 and 30) providing for indemnification of Churches in the case of accidents involving Crown owned vehicles driven by Church employees while on school business was incorporated into the draft standard form agreements between Churches and the Crown for the operation of Indian residential schools. The religious denominations and Rev. Joblin accepted this provision.

[294] So while the churches no doubt asked for a more general form of indemnification during the negotiations that led up to the 1962 agreement, it is clear that the Treasury Board agreed only to an indemnification restricted to motor vehicle liability exposure.

[295] On April 9, 1962 the agreement for the operation of AIRS was forwarded to Rev. Joblin for signature. The signed agreement for AIRS containing the restricted indemnity clauses is dated June 22, 1962. Similar language is found in the Morley School Agreement dated June 2, 1962.

[296] So in 1962 the Church knew that their indemnity was restricted to accidents arising from the use of Crown owned motor vehicles and that any form of indemnity had to be a written agreement approved by Treasury Board.

[297] This is significant when considering the communications exchanged between the parties only two years later.

[298] On May 22, 1964, Mr. Campbell, Principal of the Morley School, wrote to Mr. Kaiser of the Church who was Mr. Davey's boss. Mr. Campbell sought approval to purchase insurance for government owned vehicles and band instruments. The attachment to that letter includes a Presbytery recommendation for the Morley School to purchase premises and operations liability insurance as well.

[299] Mr. Davey responded to Mr. Campbell on May 29 and referred to the indemnity provided in the 1962 agreement which as set out above applied only to government owned vehicles. Mr. Davey then went on to say in his letter:

[300] The Church Presbytery responsible for the Morley School wrote back to Indian Affairs to ask for further clarification by letter of June 30, 1964. The Presbytery noted that the Church had recommended purchasing insurance as the Anglicans had. The letter then set out:

[301] Mr. Davey replied on July 16, 1964 saying that the Crown's agreement for the operation of the Morley School was with the Board of Home Missions and that any further discussion of the matter should be through the office of the Board of Home Mission which was responsible for Indian Schools.

[302] On the same day Mr. Davey wrote to Rev. Joblin enclosing the Presbytery letter of June 30th, Mr. Davey's reply, and Mr. Davey's May 29, 1964 letter to the principal at Morley.

[303] The church relies on this letter as evidence of the true relationship between the parties. It says this letter shows that Canada's agreement to indemnify the Church was not limited to motor vehicle or "slip and fall" liability exposure.

[304] However the parties at the time never treated Mr. Davey's letter as evidencing an agreement for complete indemnity. No one then appears to have treated Mr. Davey's statement of July 16, 1964 as an indemnity or acceptance of sole responsibility by Canada.

[305] Upon receiving Mr. Davey's letter of July 16, 1964, Rev. Joblin replied to him on July 22, 1964. Rev. Joblin agreed with Mr. Davey that communications should be made via proper channels. Rev. Joblin did not respond in any way to Mr. Davey's comment in his July 16, 1964 letter regarding general liability insurance. Consequently, I conclude from that that Rev. Joblin did not consider that there was in existence a broad agreement to indemnify existed.

[306] This becomes clearer when one looks at Rev. Joblin's two other letters of July 16, 1964, to Rev. Nix and to Mr. Ludwig, both of the Church Presbytery responsible for the Morley School.

[307] Rev. Joblin informed both Rev. Nix and Mr. Ludwig that they should refer matters of policy to him at the Board of Home Missions. Rev. Joblin said to Rev. Nix:

[308] In his letter of July 22, 1964 to Mr. Ludwig, Rev. Joblin stated:

[309] It appears that Rev. Joblin was of the same understanding as Mr. Davey as to their respective positions regarding liability. They clearly anticipated a sharing of liability. While they may have taken some comfort in having Canada as a joint partner in the event of any liability arising from the operation of the school, there is nothing to suggest that they were expecting a complete indemnity from Canada.

[310] The foregoing correspondence is also consistent with the 1962 contract between the parties for the operation of Indian Residential Schools.

[311] The Church understood this. The position that liability would be shared with the government was clearly expressed by Rev. Joblin in his letters to Rev. Nix and Mr. Ludwig on July 22, 1964.

[312] Accordingly I conclude that what the Church contends now simply does not accord with what the Church knew and did prior to this litigation. The actions of both the Church and Canada are consistent with my conclusion. The Church purchased general liability insurance to cover its potential liability in the operation of Indian Residential Schools.

[313] I conclude that Canada specifically agreed to indemnify the Church for any loss the Church or its employees might incur through their operation of government owned vehicles. I also conclude that Canada through the Treasury Board specifically rejected the request from the Churches for a broader, general indemnity.

[314] There is a heavy burden on a party claiming indemnity to establish that the words of the clause actually impose an obligation on the other party to indemnify. (See Wallach v. Garside) (1993), 82 B.C.L.R. (2d) 236 (B.C.C.A.).

[315] The House of Lords in Smith et al v. South Wales Switchgear Ltd., [1978] 1 ALL E.R. 18 at 25 defined the test to be met by the party claiming indemnity against the consequences of his own negligence or that of his servants as follows:

(i) If the clause contains language which expressly exempts the person in whose favour it is made (hereafter called "the proferens") from the consequence of the negligence of his own servants, effect must be given to that provision ...

(ii) If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens. If a doubt arises at this point, it must be resolved against the proferens ...

(iii) If the words used are wide enough for the above purpose, the court must then consider whether "the head of damage may be based on some ground other than that of negligence", to quote again LORD GREENE, M.R., in the Alderslade case. The "other ground" must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it, but subject to this qualification, which is, no doubt, to be implied from LORD GREENE'S words, the existence of a possible head of damage other than that of negligence is fatal to the proferens even if the words used are, prima facie, wide enough to cover negligence on the part of his servants.

These rules were stated in relation to clauses of exemption, but they are in my opinion equally applicable to a clause of indemnity which in many cases, including Canada Steamship Lines Ltd. v. Regem, is merely the obverse of the exemption.

[316] In the case at bar, there is no evidence of an express or implied agreement whereby Canada agreed to grant a broad general indemnity to the Church, including indemnity from the consequence of the Church's own negligence or that of its employees.

[317] The words employed by Mr. Davey in his letter of July 16, 1964 are not broad enough to constitute an intention on the part of Canada to grant such an indemnity to the Church. The words used do not include this type of negligence. At their highest they refer to Canada's assuming responsibility arising from its ownership of the buildings.

[318] Typically, claims put forward for indemnity in equity arise from a hierarchical relationship between the parties such as principle and agent or employer and employee where one is acting on behalf of the other and in so doing incurs an expense or loss. In this case I have held that Canada and the Church were engaged in a joint enterprise in the operation of AIRS with each acting for its own purpose and gain. In this type of relationship no right of indemnity in equity arises.

[319] Both Canada and the Church are vicariously liable to the plaintiffs with provable claims. That liability is joint and several and as such each of the defendants is 100% liable for the damages awarded to each plaintiff. Since I have also concluded that neither defendant is entitled to complete indemnity from the other, left to be determined are the relative degrees of each defendant's fault so that the damages award can be apportioned as between the defendants.

[320] In my earlier reasons I detailed the involvement of Canada and the Church in the operation of AIRS. The degree to which each must be held at fault is to be determined solely by the respective culpability of each defendant.

[321] Canada argues that the Church was designated in the agreements as the "manager" and for that reason ought to bear a greater share of the fault.

[322] However Canada had the ultimate decision as to who was employed as the principal of the school. In addition Canada had extensive supervisory authority over the operations at AIRS which it exercised on a regular basis. Of significance, by controlling the funding levels, Canada effectively determined the compensation that could be paid to the employees including the dormitory supervisors at AIRS. This in turn affected the quality of those hired.

[323] Canada also had a statutory responsibility under the Indian Act for the children who attended AIRS. Canada selected the students, sent them to AIRS and continued to be responsible for their well-being in accordance with the statute. That responsibility was non-delegable.

[324] Having regard to its non-delegable statutory obligations and having regard to the fact that Canada controlled the level of funding for AIRS and conducted regular inspections of the school, I conclude that Canada was the more senior of the two partners in this enterprise. Notwithstanding the fact that the Church was designated as the "manager" under the agreements, the actual relationship between the parties makes it appropriate that Canada bear a greater share of the fault.

[325] I distinguish the case at bar from the decision of Dillon J. in F.S.M. v. Clarke, [1999] 11 W.W.R. 301. In that case the court found that the principal of the Indian Residential school either knew of the sexual abuse or ought to have known. The court also found at para. 191 that Canada was "purposefully kept ignorant of Clarke's conduct by [the principal] in consultation with the Anglicans." In the result liability was divided 60% to the Anglican Church and 40% to Canada.

[326] In the case at bar assessing the relative fault of the parties leads to an apportionment of responsibility as between them of 75% to Canada and 25% to the Church.

[327] The fundamental principle to be applied is what the Supreme Court of Canada in Athey v. Leonati (1996), 140 D.L.R. (4^th) 235 at 243 has described as the "essential purpose and most basic principle of tort law": that the plaintiff must be placed in the position he or she would have been absent the commission of the tort.

[328] This requires a consideration of the specific injuries caused by the assaults of a sexual nature that I have concluded were suffered by the plaintiffs together with the measure of the loss to each plaintiff caused by those specific injuries.

[329] To be excluded are claims for damages for injuries which do not arise from misconduct of a sexual nature since these are barred by the Limitation Act, if not on the basis of other defences

[330] That is not to say that the circumstances in which the plaintiffs found themselves at the time the sexual assaults were committed and thereafter should be ignored. They were away from the comfort of their families and culture in a residential school to which their attendance was compelled.

[331] These circumstances must be taken into account in two ways. First, I must consider the particularly vulnerable position of each plaintiff arising from the compulsory attendance so far removed from home community. Second, I must also consider the position each plaintiff would have been in had the sexual assaults never occurred.

[332] It is shameful that these plaintiffs, along with so many other First Nations people, have a position which was in so many cases severely disadvantaged by the negative life-long effects of the simple fact of attending at an Indian Residential School.

[333] However it is not the judicial role or function to engage in a consideration of such societal matters. My task is to apply the principles of tort law and assess a dollar award for the injuries, which the plaintiffs have suffered and which were caused by the proven sexual assaults. These principles require me to consider the fact of attendance at residential schools not as a basis for an award of damages in and of itself, but rather as a factor to be considered when assessing the impact of the sexual abuse. It must also serve as a baseline for a comparison of the effects of the sexual assaults which were committed.

[334] Leaving aside the sexual assaults, the plaintiffs would still have been at AIRS and they would:

(a)     have been living away from their families, communities and culture;

(b) have been forced to speak English instead of their own Native languages;

(c) have had to eat food that was vastly different from what they were used to;

(d) have been subjected to the physical pain and the fear associated with the violence among the children;

(e) have endured the terror of the gauntlet;

(f) have been the victims of excessive corporal punishment from supervisors and other adults at AIRS; and

(g) have been subject to racist discrimination when bussed to public schools.

[335] These factors, many other difficult lifetime experiences, and other background factors constitute these plaintiffs' positions for comparison purposes.

[336] My task is to set an award of damages sufficient to compensate the plaintiffs for the differences between the way their lives would have been, given what even the defendants concede placed them in a severely compromised position by reason of their forced attendance at AIRS and the way their lives have been, given the additional, but by no means insubstantial, fact of the sexual assaults.

[337] As set out above these claims present special challenges to the Court. With the passage of time objectively verifiable evidence of the assaults is generally long gone.

[338] What remains for the Court to consider are the subjective reports of the plaintiffs concerning both the physical injuries, which are no longer objectively verifiable, and, more importantly, the psychological injuries which, by their very nature, were never objectively verifiable. The experts who assess a plaintiff are in the same position as the court: their opinions must necessarily be based on subjective information either directly from the plaintiff or from collateral sources who have recorded subjective information from the plaintiff. In such circumstances the reliability of such subjective evidence, and consequently the plaintiffs' credibility, become central issues.

[339] The following observation by Singh J., in LeTexier v. Maahs, [1994] B.C.J. No. 644 at para. 5 (Q.L.) (B.C.S.C.) although made in a motor vehicle case where soft tissue injuries were in issue, is apposite:

[340] In assessing the plaintiff's subjective evidence, the court need not conclude that the plaintiff has consciously lied before the evidence is not accepted. The plaintiff's evidence may simply be unreliable. As stated by Melnick, J. in Coutts v. Popplewell, [1994] B.C.J. No. 884 at para. 100 (Q.L.) (B.C.S.C.):

[341] The passage of time also makes it difficult to challenge the evidence. In this case the defendants are essentially left with the contents of clinical records as a source for verifying the plaintiffs' evidence concerning their reported symptoms from the sexual abuse. In some instances the records contain entries which contradict a particular plaintiff's evidence. Also to be borne in mind is that not every significant event in an individual's life will be noted in a doctor's chart.

[342] Because of the absence of a limitation period in a sexual assault case the plaintiff controls or directs when a claim is brought before the court. While it no doubt hampers the ability of the plaintiff to put a claim forward, a substantial delay also affects the ability of the defendant to locate and present evidence, which might contradict the plaintiff's assertions. The longer the elapsed time between the assault and the trial, the more difficult is the defendant's task.

[343] In such circumstances, the court must exercise great care in considering the uncorroborated evidence provided by the plaintiff. As stated by Lowry J. in R.E.E. v. W.O.T., [2000] B.C.J. No. 342 (Q.L.) (B.C.S.C.); 2000 BCSC 309 at para. 12:

[344] Another factor to be considered is that although both the court and the expert witness must rely upon the plaintiff's subjective evidence in cases such as these, their respective roles in that process are quite different. Melnick J. addressed this point in Coutts at paras. 40-41:

[345] In Brumm v. Inglis, [1997] B.C.J. No. 1181 at para. 22 (Q.L.) (B.C.S.C.) Pitfield, J. emphasized the different roles of the Court and the experts as follows:

[346] In arriving at their opinions on matters of causation, the expert witnesses in the case at bar had to consider four general classes of factual evidence:

(1) Evidence concerning the plaintiffs' background and life experiences prior to the commission of the sexual assaults;

(2) Evidence concerning the nature and particulars of the sexual assaults;

(3) Evidence concerning the plaintiffs' life experiences generally contemporaneous with the commission of the sexual assaults;

(4) Evidence concerning the plaintiffs' life experiences subsequent to the commission of the sexual assaults.

However, the facts on which many of the opinions were based were not consistent with the trial evidence. Many of the opinions provided by the expert psychiatric/psychological witnesses as to the causes of the plaintiffs' psychological conditions were based on facts that were not proven during the course of the trial.

[347] The greater the variation between the factual assumptions relied on by an expert in forming an opinion and the trial evidence and the consequent findings of fact, the less is the weight that can be attached to the opinion.

[348] In Canada v. Ladouceur, [1976] F.C.J. No. 415 at para. 27 (Q.L.) (F.C.T.D.) this proposition is put succinctly:

[349] Southin, J.A. considered this principle in the case of Sandhu v. Braich (1992), 61 B.C.L.R. (2d) 273 at para. 49:

[350] Southin J.A. went on to state at paragraph 55:

[351] Quijano J. applied this principle in disregarding expert medical reports on the issue of causation in the case of Smyth v. Gill, [1997] B.C.J. No. 983 at para. 23-24 and 27 (Q.L.) (S.C.)saying:

[352] The defendants say that an adverse inference should be drawn because the plaintiffs failed to call Dr. Charles Brasfield as a witness. Dr. Brasfield is a psychiatrist practising in British Columbia. According to Dr. O'Shaughnessy, the expert psychiatrist who gave expert evidence on behalf of the Church, Dr. Brasfield has a specialized practice and treats only Native patients. He treated five of the seven remaining plaintiffs and two of the settling plaintiffs.

[353] The defendants say that given his long-standing therapeutic relationship with so many of the plaintiffs, Dr. Brasfield likely has information and is in a position to offer opinions which would be of assistance to the court, particularly in the area of causation.

[354] The evidence of a treating physician will generally be of great value to the court in a personal injury action. Unlike physicians retained to conduct an independent medical examination and to opine on the state of the plaintiff's health for the side that retains them, treating physicians generally enjoy an ongoing relationship with a patient that has developed over the course of many visits and examinations. While they may lack the specialist qualifications of the independent medical examiner, they are often better positioned to help the court understand a plaintiff's medical condition. Because of this the court expects that a plaintiff will either tender the evidence of his treating physicians or provide an explanation for not doing so.

[355] In Barker v. McQuahe et al (1964), 49 W.W.R. 685 at 689 (B.C.C.A.) Davey J.A. stated:

[356] Hence Barker requires a plaintiff in a personal injury action to either call as part of his case the physicians who treated him or to provide an explanation to the court as to why that was not done. Failure to follow either course will result in an adverse inference being drawn against the plaintiff.

[357] The issue in this case is whether the plaintiffs have provided an explanation. Counsel for the plaintiffs say that Dr. Brasfield was not called because of the chilling effect such a decision would have had on the plaintiffs in this as well as in other cases of this nature. The plaintiffs are still under active treatment by Dr. Brasfield. Counsel say these plaintiffs are very fragile and that if their treating psychiatrist is called to testify and is cross-examined it would have an adverse effect on their course of recovery.

[358] No medical evidence was tendered to support that proposition. However, in my view, the court's experience with the consequences of sexual abuse allows for the common sense inference that to call a treating psychiatrist to testify during the course of an ongoing treatment program could well have an adverse impact on a plaintiff's recovery.

[359] I conclude that in the particular circumstances of this case I am not prepared to draw an adverse inference by reason of the plaintiffs' failure to call Dr. Brasfield. Of course I also note that the plaintiffs have lost any opportunity that might have existed for Dr. Brasfield to assist their cases.

[360] In Athey at paras. 13-15, 23, the Supreme Court set out the following principles to be applied in determining causation:

...

...

[361] A pre-disposition to a problem is not sufficient to diminish liability. The Court continued at paragraph 34-35 to note that the "thin skull" rule makes:

[362] In contrast, the "crumbling skull" rule recognizes that:

[363] How are these principles to be applied in this case? Once a sexual assault has been proven, the court must consider (a) the extent to which that act has caused the plaintiff an injury and, further, (b) whether that injury has caused the plaintiff a loss. The former is concerned with establishing the existence of liability; the latter with the extent of that liability.

[364] For this classification, "injury" refers to the initial physical or mental impairment of the plaintiff's person as a result of the sexual assault, while "loss" refers to the pecuniary or non-pecuniary consequences of that impairment. In other words, the issue of causation applies both to considerations of establishing liability for a specific injury and to considerations of establishing damages for that injury.

[365] In cases of historical sexual assault, the plaintiff is likely to be claiming for chronic injuries, often psychological in nature. It is not uncommon for the life history of a victim of a historical sexual assault to include numerous stressful, unpleasant experiences unrelated to the sexual assault. Individuals, such as the plaintiffs in these matters, come before the courts with diagnoses of post-traumatic stress disorder, depression, substance abuse and other psychological conditions. Unravelling the question of causation in these cases arising as they do from torts committed so long ago is a daunting task.

[366] The plaintiffs submit that the new principle that emerges from Athey is that there is now no apportionment between tortious and non-tortious causes. They contend that "as long as the sexual and physical assaults suffered by the plaintiffs in this case are found to be a contributing factor beyond the de minimus range, the defendants must be found liable for the totality of the damages suffered by the plaintiffs."

[367] The plaintiffs also argue that "any inherent predisposition to alcoholism or other psychological illnesses, whether as a result of genetics or environmental factors including a "cultural factor", would fall within the application of the thin skull rule unless there was evidence that the plaintiff was bound to become an alcoholic or suffer the psychological disorders regardless of childhood sexual abuse.

[368] However, in my view, Athey was not so much a relaxation of causation principles as it was a re-statement and application of existing and well established tort principles. As stated by Boyle, J. in Dyck v. Dave Buck Ford Sales Ltd., [1997] B.C.J. No. 1789 at para. 36 (Q.L.) (S.C.):

I do not read Athey to say that.

[369] In Sales v. Clarke, [1998] B.C.J. No. 2334 at para. 14-16 (Q.L.) (C.A.) Finch J.A. (as he then was) made the following comments:

In the case at bar the court is primarily concerned with proof of past losses, given the historical nature of these claims.

[370] In Athey, after he set out the "General Principles" at paragraphs 13-20 of his reasons, Major J. applied them to the facts of that case. His formulation at para 41 of the ramifications of these "General Principles" can be adapted here where the plaintiffs allege psychological injury arising from sexual assaults in the presence of other psychologically traumatic circumstances in their lives:

(1) If the psychological injury would have occurred at the same time, without the injuries sustained in the sexual assault, then causation is not proven;

(2) If it was necessary to have both the sexual assaults and the other life circumstances for the psychological injury to occur, then causation is proven since the psychological injury would not have occurred but for the sexual assaults;

(3) If the sexual assaults alone could have been a sufficient cause, and the other life circumstances alone could have been a sufficient cause, then it is unclear which was the cause in fact of the psychological injury. The trial judge must determine, on a balance of probabilities, whether the defendant's sexual assault(s) materially contributed to the psychological injury.

[371] How are the Athey principles to be applied in the case at bar? The desired approach would be to first identify the separate psychological injuries proven by the plaintiff. Then, for each one, the three questions set out above could be posed to determine whether the plaintiff has proven on the balance of probabilities that each particular psychological injury was caused by the proven sexual assault; i.e. that liability for that injury has been established.

[372] This approach is seen in V.(J.L.) v. H.(P.) (1997), 31 B.C.L.R. (3d) 155 (S.C.) where Stromberg-Stein J. found separate and distinct psychological injuries in a sexual assault case: borderline personality disorder and post-traumatic stress disorder. She found the former to have been caused by the sexual assault but the latter to have been a distinct injury caused by a different event. She assessed damages accordingly.

[373] But often these injuries are not such discrete events in the plaintiff's life history. Particularly in cases of this nature such compartmentalization often cannot be achieved. It is frequently virtually impossible to differentiate specific psychological ailments caused by sexual abuse from specific psychological ailments caused by other life events. This is especially so when the time period under consideration spans decades.

[374] In Athey Major J. considered instances where it would be appropriate to limit the plaintiff's entitlement to damages, even where causation has been proven with respect to liability. In doing so, Major J. restated the following fundamental principle at para. 32:

[375] The proposition is simple to articulate: the measure of the plaintiffs' damages is the difference between the position they would have been in absent the sexual abuse, and the position they occupy now given the occurrence of the sexual abuse. The challenge lies in its application.

[376] All parties in the case at bar agree that the plaintiffs' original positions were significantly compromised position by reason of their compulsory attendance at AIRS.

[377] In their submissions Canada and the Church stressed all of the traumatic, non-sexual experiences the plaintiffs went through while at AIRS. While it may seem anomalous that the parties which ran AIRS would come to court and emphasize all of the negative aspects of the residential school(excluding the sexual abuse), such is the result of the plaintiffs' non-sexual abuse claims being statute barred. The defendants also stress the plaintiffs' background and life experiences before and after attending AIRS.

[378] An analysis, which simply compares the plaintiffs before and after AIRS, would ignore the impact of the non-compensable trauma they suffered at the residential school. However, as noted above, that trauma, even if non-compensable, may properly be considered when assessing the impact of the acts of sexual abuse inflicted upon the plaintiffs.

[379] Athey was applied in Whitfield v. Calhoun (1999), 242 A.R. 201 (Q.B.). In that case, Paperny J. recognized that damages should be restricted when a non-tortious event, occurring after the accident but before trial, would have negatively impacted the plaintiff regardless of the defendant's negligent conduct.

[380] In that case, the plaintiff developed Carpal Tunnel Syndrome after the motor vehicle accident but before trial. Paperny J. found that the plaintiff's Carpal Tunnel Syndrome was most likely related to his occupation as a welder.

[381] Athey also addresses the relevance of pre-existing conditions. In British Columbia the "thin skull" and "crumbling skull" principles have traditionally addressed the issue of a pre-existing condition. Although the two principles are related, they differ in terms of the assessment of damages.

[382] In a thin skull case, a plaintiff will recover full damages for the injuries suffered. In a crumbling skull case, a reduction in the quantum of damages will be made to account for the plaintiff's pre-existing condition (Whitfield at para. 94).

[383] The case of Pryor v. Bains and Johal (1986), 69 B.C.L.R. 395 (C.A.) suggests that the distinction between thin and crumbling skull depends on whether the pre-existing condition was present and disabling at the time of the tort. The Court said at 399-400:

[384] Courts have struggled with this distinction when dealing with psychological or emotional injuries. As stated by Paperny J. in Whitfield at para. 97:

[385] Significantly, the discussion in Athey avoids this "thin skull/crumbling skull" terminology. Major J. outlined the principles at paras. 34-35:

[386] In Whitfield Paperny J., after quoting the above passage from Athey, stated at para. 100:

[387] In Whitfield the plaintiff had been diagnosed prior to the motor vehicle accident with a pre-existing personality condition: adjustment resistance to adolescence. However, in the years following the plaintiff's adolescence, up to the date of the motor vehicle accident, the plaintiff had neither exhibited any problematic behaviour nor demonstrated any functional compromise in his life relating to the previously diagnosed personality problem. In considering the impact of the plaintiff's pre-existing personality condition on damages, Paperny J. said at para. 118-119:

[388] In the case at bar the defence says that with their family backgrounds, home lives prior to AIRS, the institutionalization at AIRS, and all of the non-sexual traumas which they have suffered to date, the plaintiffs had measurable risks and shortcomings which were inherent to their position regardless of the sexual assaults. In my view these are all factors that I must assess in this case in accordance with the principles in Athey.

[389] The principles in Athey have been applied in a number of sexual assault cases to resolve issues of causation.

[390] In D.W. v. Canada (Attorney-General) and Starr (1999), 187 Sask. R.21 (Sask Q.B.) the principal of an Indian residential school sexually assaulted a young male resident. Maurice, J. said at paras. 28-29:

In this case Maurice J. opted to make a global assessment to which he then applied a contingency reduction.

[391] In M.B. v. British Columbia, [2000] B.C.J. No. 909 (Q.L.) (B.C.S.C.); 2000 BCSC 735, (appeal dismissed 2001 BCCA 227), a female plaintiff was sexually abused by her foster father. She sued him as well as the provincial government. Before entering the foster care system, the plaintiff had been sexually abused by her biological father. Levine J. made the following comments with respect to causation at paras. 252 and 265:

...

[392] In T.M.B. v. R.R., [2000] B.C.J. No. 1435 (B.C.S.C.); 2000 BCSC 1029, the plaintiff was sexually abused as a child by an uncle. However, her life at home before the abuse had been traumatic. In discussing the plaintiff's life prior to the sexual assaults, Boyle J. said at paras. 3, 12 and 13:

...

[393] Using the same approach as Maurice J., Boyle J. decided that an "adjustment" was required to take into account the "contributing factor of debilitation, the alcoholic parents". He fixed that adjustment at 30% and reduced the plaintiff's damage award accordingly.

[394] However this approach has been called into question by M.(M.) v. F.(R.) (1997), 52 B.C.L.R. (3d) 127 (C.A.), a case in which the plaintiff sued her foster brother for sexual assault. The plaintiff also sued her foster mother in negligence and for breach of fiduciary duty. The trial judge reduced the damages by 40% to take into account causes other than the sexual assaults. He found no basis to link the plaintiff's alcoholism with the abuse.

[395] On appeal Esson J.A. for the majority increased the award to 100% saying he agreed "substantially" with the reasons of Donald J.A., who was in dissent on other issues. Donald J.A. concluded that the 40% reduction was an error in principle. Mr. Justice Esson did not elaborate further as to the scope of his agreement with the reasoning of Donald J.A.

[396] Of significance is Donald J.A.'s factual finding at 150:

[397] By contrast, in the case at bar there is considerable evidence of traumatic events in the lives of these plaintiffs, which were unrelated to the sexual assaults.

[398] The high water mark in this province for an aggregate award for non-pecuniary and aggravated damages in a case of this nature is S.Y. v. F.G.C. (1996), 26 B.C.L.R. (3d) 155, (B.C.C.A.). That case involved a seven-year history of sexual assault by a stepfather upon his stepdaughter. There were over 700 incidents of such abuse, which included painful digital penetration of the plaintiff's vagina, simulated intercourse and masturbation.

[399] Macfarlane J.A., writing for the Court, concluded at paras. 53 and 59 that the jury award of $350,000 for general and aggravated damages, "is not only high, but wholly out of proportion." The court reduced the award to $250,000 stating that that figure "would not have been wholly out of proportion in view of the factors open for consideration by the jury."

[400] In reducing the award the Court of Appeal may have taken into account that the original award at trial had been made by a jury and not by a judge sitting alone. The Court also did not say that an award of $250,000 would be appropriate. Rather, by choosing to say that the amount "would not have been wholly out of proportion", the court, while extending appropriate deference to the jury's verdict at trial, was also limiting the extent to which the appellate court's decision was intended to be used as a benchmark in British Columbia.

[401] In subsequent cases, the "high end" for combined awards for non-pecuniary and aggravated damages is in the range of $175,000 to $185,000. See, for example, K.A.T. v. J.H.B. (1998) 51 B.C.L.R. (3d) 259 (S.C.) and L.M.N. v. Munday, [1998] B.C.J. No. 2591 (Q.L.) (S.C.). Of note is that in both cases, as in the case of S.Y. the court did not consider that there was any need to take into account any pre-existing conditions affecting the plaintiff or any subsequent intervening traumatic events.

[402] In T.M.B. the female plaintiff was sexually abused from age 8 to 11 by an uncle. The abuse included touching and oral sex.

[403] The plaintiff's parents separated when she was three and she moved back and forth between their homes. The plaintiff's mother sexually entertained a series of men and their activities were not hidden from the plaintiff. There was a good deal of yelling and verbal abuse in the homes of both of the plaintiffs' parents. The plaintiff was teased at school. The plaintiff left school at 10 and ran away from home at age 12. The plaintiff became an alcoholic, a drug user and she gave birth to two children by different fathers.

[404] After noting that the damages had to be adjusted to recognize the "contributing factor of debilitation, the alcoholic parents" and that virtually every non-organic aspect of the plaintiff's life had been deleteriously affected by the mistreatment the plaintiff received, Boyle J. awarded $87,500 in general and aggravated damages.

[405] In D.(P.A.) v. H.(A.E.) (1998), 49 B.C.L.R. (3d) 340 (S.C) Sinclair-Prowse J. awarded $85,000 for general and aggravated damages in a case involving a sexual assault of a female plaintiff by her stepfather. The sexual assaults occurred when the plaintiff was between 13 to 16 years old. They consisted of kissing the plaintiff's breasts and performing oral sex upon her. There was no force or threat of force and when the plaintiff resisted, the defendant stopped.

[406] An award of $85,000 for general and aggravated damages was made in the case of J.P. v. T.J.S., [1999] B.C.J. No.1230 (Q.L.) (S.C.). A teacher sexually assaulted the female plaintiff while in Grade 10. The assault involved a single incident of non-consensual intercourse. The plaintiff's life since the assault was marked by deep depression, alcohol and drug abuse, obesity and an inability to establish healthy relationships with men. It was also marked by near poverty.

[407] In V.(J.L.) Stromberg-Stein J. awarded the sum of $80,000 in general and aggravated damages. The female plaintiff alleged that her father sexually abused her over a two-year period. The judge concluded that the plaintiff was abused sexually and physically from the age of 12 including three incidents of violent rape. Stromberg-Stein J. made the following comments at 195-196:

[408] Stromberg-Stein J. concluded that as a result of the sexual abuse the plaintiff suffered severe psychological problems including borderline personality disorder and post-traumatic stress disorder. She had a severe sexual dysfunction. She engaged in self-destructive behaviour such as mutilation through slashing. In assessing damages, Stromberg-Stein J. concluded at 198:

[409] In D.W. the male plaintiff, a resident at the Gordon Student Residence Indian Residential School, was twice sexually assaulted by the residential school principal. On the first occasion, the principle fondled the plaintiff's penis and inserted his finger in the plaintiff's anus. On the second occasion, the principal forced the plaintiff to perform fellatio on him.

[410] The plaintiff testified that he was traumatized by the assaults. He complained of recurring nightmares and a decreased ability to concentrate, which caused difficulties in school. The plaintiff recounted a history of disordered sleeping, panic attacks, lack of trust in people, lack of intimacy in his relationship with his female partner and their children, and confusion about gender preference. Non-pecuniary damages of $65,000 and aggravated damages of $10,000 were awarded.

[411] In another residential school case from the same institution, P.(V.) v. Canada (Attorney-General), [2000] 1 W.W.R. 541 (Sask. Q.B.), the male plaintiff was sexually assaulted by the residential school principal on three occasions. The assaults included the principal touching the plaintiff's buttocks and genitals, and, on at least two occasions, the principal ejaculating between the plaintiff's legs. These assaults were committed when the principal was disciplining the plaintiff. A combined award for non-pecuniary and aggravated damages was made in the amount of $35,000.

[412] I would observe that the range of damages typically awarded in Saskatchewan in cases of sexual assault tends to be somewhat lower than the range in British Columbia.

[413] In B.(D.J.) v. B.(A.R.)(1997), 44 B.C.L.R. (3d) 154 (S.C.), the female plaintiff was made to shower with her stepfather over a five year period. The plaintiff was forced to wash her stepfather's body, except his penis. In turn, her stepfather washed her. There was no sexual intercourse, penetration or violence.

[414] The plaintiff claimed that as a result of the showers with the defendant she suffered extreme emotional, psychological and social consequences including anger, depression, irritability, low self-esteem, fear of rejection, anxiety and lack of assertiveness. She used drugs and alcohol and lacked confidence in her life endeavours. Loo J. awarded the plaintiff a total of $10,000 in damages plus $2,000 for the cost of future counselling.

[415] In R.E.E. v. W.O.T. [2000] B.C.J. No. 344 (Q.L.), 2000 BCSC 309, Lowry J. awarded the sum of $5,000 damages. The male plaintiff alleged that he was sexually assaulted by the male defendant. Lowry J. found that the defendant had bullied the plaintiff leading up to one incident of oral sex. The expert evidence in the case suggested that the plaintiff's ongoing psychological problems were multi-factorial resulting from genetic, biological and psychosocial factors. Lowry J. noted that the medical evidence did not

[416] In addition to compensatory damages, the plaintiffs seek an award of punitive damages against Canada and the Church. In this case I have found both defendants vicariously liable for the proven assaults. I have also concluded that Canada breached its statutory duty of care under the provisions of the Indian Act. I have assessed punitive damages against Plint for his misdeeds.

[417] The issue is whether either Canada or the Church can be held jointly and severally liable for such damages or whether the conduct of either defendant justifies an award of punitive damages.

[418] I conclude that it does not. Punitive damages in this province are not awarded against an employer for the misconduct of an employee in the absence of reprehensible conduct specifically referable to the employer. (See Houston v. Cook [1998] B.C.J. No. 2151; Critchley per Allan J.).

[419] In the case at bar I have dismissed the claims of direct liability against the defendants. I have found them liable on the principle of vicarious liability and, in the case of Canada, for breach of Canada's non-delegable statutory duty. This liability does not arise from any misconduct or reprehensible conduct on their part.

[420] Rather this liability is imposed on these parties through a legal principle that allocates loss to a defendant solely by reason of the relationship between the defendant, the tortfeasor and the plaintiff. This type of liability is non-fault based and represents a policy choice that sees, as between an innocent plaintiff and the innocent employer of a tortfeasor, the loss allocated to the employer.

[421] Where liability is imposed in this way there is no basis in law for an award of punitive damages.

[416] Dr. Roy O'Shaughnessy is a psychiatrist with a private practice in forensic psychiatry. For the last ten years the majority of his work has involved motor vehicle accident and sexual assaults victims.

[417] As noted earlier he was retained by the Church and he prepared reports concerning the plaintiffs Frederick Leroy Barney and R.F. as well as a general report, which describes the psychiatric issues related to traumatic childhood events and in particular incidents of sexual abuse.

[418] At page 2 of his general report, Dr. O'Shaughnessy explains the concept of "recall bias". When one asks people about their childhood histories and experiences, one is likely to receive a skewed view of what happened based on their current feelings towards the people in their lives or the evolution of subsequent events. In his evidence, Dr. O'Shaughnessy explained:

[419] Dr. O'Shaughnessy then explained the variability in human memory and concluded:

[420] I take from his evidence that Dr. O'Shaugnessy is not suggesting that adults will intentionally mislead when they recall their childhood memories of traumatic events such as sexual abuse. Rather he says that this "recall bias" is simply a phenomenon that has been observed to occur and for that reason those working in the field are cautious about basing research findings on this type of recollection. I accept that similar caution ought to be exercised by a trier of fact when assessing the evidence in a case such as this.

[421] In his report Dr. O'Shaughnessy also makes the following points concerning the effects of traumatic stress at p. 3:

[422] This last point serves to illustrate that the court cannot leave it to the psychiatric/psychological experts to answer the difficult causal questions which arise in cases of this nature. Their evidence must be viewed as a part of the overall evidence in the case which must be considered in order to arrive at conclusions regarding causation.

[423] Mr. Barney was born September 7, 1956 and is a member of the Ucluelet Band of the Nuu-Chah-Nulth nation. He has worked as a logger for most of his adult life but is presently on a disability pension. He is not married. He has twin daughters who are now about 23 years of age.

[424] In direct examination Mr. Barney described a relatively benign and idyllic early childhood with his parents, his eight siblings and extended family.

[425] He recalls being taken to the waterfront almost every day by his father. They would enter the water and his father would chant in the Ucluelet language and brush him with cedar boughs. This was done out of respect for the water and the land around them and a means of giving thanks to the creator. Mr. Barney was able to understand most of what his father said in the Ucluelet language.

[426] Mr. Barney recalls the involvement of his extended family. He says his grandfather taught him right from wrong and educated him through story telling which he remembers fondly. Much of the intra-family communications were conducted in the Ucluelet language which he spoke and understood.

[427] His father drank alcohol but generally stayed away from the home when he did this. Mr. Barney says he did not realize that his father's drinking had been a problem until he was a teenager.

[428] In cross-examination he did describe incidents of considerable violence in which his father assaulted both his mother and himself. In 1997 he completed a question-naire while in a counselling program in which he indicated that before he was 18 he was hit or beaten so hard or so often by his father and by his siblings that he had marks or feared the person who struck him.

[429] He also witnessed an incident in which his father raped his mother. He understood that his mother would have left his violent father sooner if she had not become pregnant with him after that rape. He says when he learned of this he felt shame at keeping his mother in a violent relationship because of his birth.

[430] He says he saw his father drunk on more than one occasion. He described himself in counselling records as a child of alcoholic parents. The same records report him stating that drinking by his father repeatedly caused family, health, job or legal problems.

[431] I conclude from his evidence that before he went to AIRS he was living in a home environment that was uneven. He did have support from an extended family as well as his parents. However his father was also an alcoholic prone to acts of violence. Mr. Barney witnessed violent physical attacks by his father on his mother including rape. His father seriously beat him.

[432] The defence says that when he testified in chief Mr. Barney tried to minimise these problems in an effort to advance his claim. I do not conclude that Mr. Barney deliberately set out to do this. These events occurred long ago. He has undergone counselling and has then lived with this case for an extended period of time. Rather than being a deliberate attempt to mislead the court, the quality of his evidence is reflective of both the passage of time and numerous intervening events.

[433] Mr. Barney arrived at AIRS when he was not quite seven years old. He was relatively small at just over three feet tall and weighed 50 pounds.

[434] All parties in their submissions emphasized the very traumatic nature of the experiences Mr. Barney suffered at AIRS quite apart from the sexual assaults.

[435] Mr. Barney's parents never told him that he would have to go away to the school. He first learned about it when his brothers came to get him and there was a shopping bag on the floor with his clothes in it. He was then escorted across the bay from Ucluelet in a police boat.

[436] Shortly after arriving at AIRS, Mr. Barney's head was shaved, depriving him of his long hair which he had been taught was his strength. After his hair was cut he lost his identity as a Native person. He described the significance of his removal from his family and Native culture as follows:

[437] Further, he stated:

[438] Mr. Barney recalls being quite frightened early on at AIRS. He missed his parents and he found the other children in the dorms aggressive and rough.

[439] One of the hardships at AIRS which has had a profound, long-term effect on Mr. Barney's psychological well-being was the infliction of corporal punishment for reasons he never understood. He believes he was blamed for things he did not do. Mr. Barney says that as a result, he continues to this day to take blame on himself.

[440] He was deeply troubled by his first incident at AIRS when he was forced to run the "gauntlet". This form of punishment required an offender to pass between two lines of students who would beat the offender as he went along. Mr. Barney described that first incident as follows:

[441] Not understanding why he had been punished, he was so confused and distraught that he tried to kill himself by jumping head first off the exterior stairs from the third floor of AIRS. He explained his torment further:

[442] Mr. Barney's reaction to this incident provides insight into the cause of his reactions to subsequent unpleasant events in his life. When asked how it made him feel to be forced to run the gauntlet for playing hide and seek Mr. Barney said:

[443] Mr. Barney explained "very sore and tight" as follows:

[444] The sexual assaults by Plint began in Mr. Barney's second year at AIRS and continued through the rest of his time at the school. The assaults included multiple incidents of being forced to fellate Plint and being anally raped by him.

[445] The sexual assaults were accompanied by violence. Plint would hold his hand over Mr. Barney's mouth to keep him from calling out for help, punch him in the stomach and hit him on the head around the ears. Plint also threatened to kill him. Mr. Barney believed these threats and was understandably terrified.

[446] After the sexual assaults started there was no place at AIRS where Mr. Barney felt safe, and no one at AIRS with whom he ever felt safe. He lived in constant terror of seeing the omnipresent Plint.

[447] The pain and terror of the sexual assaults are best described in Mr. Barney's own words:

[448] Plint liked Mr. Barney's "silky skin" so in desperation he tried to scrub himself with the brushes used to clean fingernails in order to make his skin rough and less attractive to Plint.

[449] The fact that the sexual assaults continued, and that he never knew when he would be assaulted, added to Mr. Barney's anguish:

[450] Mr. Barney testified that the other physical violence, unrelated to the incidents of sexual assaults, which he experienced and witnessed at AIRS had a lasting effect on his personality. He said that he was beaten by Humchitt, Plint and Andrews as well as by other boys while running the gauntlet and that those beatings started within a few months of his arriving at AIRS. Each time he ran the gauntlet he felt terror and hurt.

[451] Mr. Barney was frequently in fights with other boys at AIRS. These fights started before any sexual abuse. Mr. Barney explained how he came to be involved in fights as follows:

[452] After leaving AIRS Mr. Barney continued to resort to physical violence when he felt that someone was displaying anger towards him, insulting him, or blaming him for something he did not do. He testified that after leaving the school he was "very mean in regard to people in general". In his words:

[453] Mr. Barney testified that when he was in junior high school, "if somebody got pissed off at me, I - it didn't matter how big they were, I was fighting grade 10 students and grade 9 students". He also described an incident when he became involved in a physical altercation with a teacher when he was blamed for something he did not do. He said that the reason he fought with the teacher was:

[454] It is questionable as to whether Mr. Barney's lifetime pattern of violence is directly connected to his experiences of being sexually assaulted. It appears that he developed a pattern of resorting to violence as a result of being so violently treated himself at AIRS for reasons he could never understand. He responded with violence to any individual who was angry or insulting to him. The unfortunate consequence, as he recognizes, is that his willingness to resort to violence has caused his social isolation. As he explained:

[455] Even after Mr. Barney was sexually assaulted by Plint, he described his feelings by making reference to his fear of physical violence and being blamed for something he did not do. After being sexually assaulted by Plint he says he was terrified of:

[456] Mr. Barney's early experiences at socialization were not improved at public school in Port Alberni. There Mr. Barney felt humiliated and ashamed of being put down because all of the residential school children had identical dress, lunches and short hair. He experienced racial criticism from the other children at public schools and he felt inferior to non-Natives.

[457] While Plint sexually brutalized Mr. Barney while he attended AIRS, I conclude that the non-sexual brutalization he suffered also had a significant impact.

[458] I have earlier pointed to a stark incongruity in this case. The defendants, who were jointly responsible for AIRS, are in complete agreement with the plaintiffs' depiction of their non-sexual abuse mistreatment at AIRS. By emphasizing the statute barred non-sexual abuse, the defendants seek to minimize the relative impact of the compensible sexual abuse. As distasteful as this may appear it is nonetheless the inevitable result of the Legislature's decision to remove any limitation period for the tort of sexual assault while leaving all other limitation periods unchanged.

[459] Mr. Barney left AIRS when he was twelve and went to live in Port Alberni with his mother who had separated from his father.

[460] At 12 or 13 he had sexual intercourse with a woman who lived nearby and whom he described as a prostitute. He testified at trial that this incident triggered memories of his abuse at AIRS. However at his discovery he said that the experience made him feel "pretty good because I had never experienced it before".

[461] Mr. Barney started drinking alcohol in Grade 9 when he was about 14. He started playing pool with some success, generating funds which he used to buy alcohol and drugs. He described the relationship between his substance abuse and his worsening attendance record at high school: "Well, being in high school, I got into smoking marijuana and hashish and going to the pool hall and skipping out."

[462] It appears that Mr. Barney was mixing with a bad crowd. He slipped into a pattern of drinking and drug use. He appreciated the disinhibiting result: the feeling of courage, a lack of worries and an ability to talk to girls.

[463] He left school in grade 11 because he had a hard time concentrating and being in class. In his words:

[464] His pattern of heavy drinking and cannabis use continued through his teenage and adult years until he attended a residential treatment program in 1997.

[465] After leaving school Mr. Barney completed a logging course at Malaspina College. He worked almost continuously as a logger with a series of employers from 1973 to 1996. Problems caused by an old ankle injury forced him to stop logging at which time he started receiving a disability pension of $1500 per month from WCB.

[466] He drank heavily throughout his years as a logger. He began a relationship with Marie Audet in 1976 and that year his twin daughters were born. Less than nine months later Ms. Audet abandoned Mr. Barney and the children and did not return. He placed the twins in his sister's care: while there they were sexually abused by his nephew.

[467] There was a break in Mr. Barney's employment between 1985 and 1988. He says he was on welfare for about two years during this period and that he was "depressed as hell".

[468] Mr. Barney described five relatively long-term relationships as well as had shorter sexual relationships with "a lot of women". He agreed his drinking and drug taking played a major role in his destructive relationships with women.

[469] At trial Mr. Barney was led through evidence in chief of eleven suicide attempts. There was little or no prior disclosure of these incidents, although he does say that until the trial he was not ready to discuss this subject.

[470] The first attempt occurred before he was sexually abused at AIRS. For his second attempt he tried to drown himself in the bathtub after being assaulted by Plint, who pulled him out. The remaining attempts occurred after he left AIRS.

[471] On one occasion he walked into the ocean and placed a rock on his chest. This happened after a woman he was seeing started flirting with and kissing another man at a party they attended. On another occasion he says he dived from a 100 foot bridge after he ran out of alcohol and another man refused to share with him.

[472] The fifth attempt occurred while he was working at Mill Stream Timber and living with Ms. Audet. He says it was preceded by the following events:

He then went to his cousin's place and played Russian Roulette with a revolver. Mr. Barney attributed his conduct on this occasion to the fact that:

[473] Mr. Barney's sixth attempt was apparently triggered by hearing that a cousin had hung himself. He felt bad because he had spoken to the cousin just before this occurred. Mr. Barney took a rope into the woods the next morning but, despite his experience in the logging industry, was unable to affix the rope to a tree to accomplish his own hanging. This attempt ended when another cousin happened along and cut up Mr Barney's rope.

[474] The seventh incident related to an incident in 1980 when Mr. Barney was drinking in the logging camp. He says that he was feeling alone and depressed and that he broke his vodka bottle and used the broken glass to slit his wrist.

[475] Mr. Barney described an eighth suicide attempt when he tried to kill himself by falling a tree on himself. He says he was saved only by a shift in the wind.

[476] For the ninth attempt Mr. Barney dove off a bridge. He described this as follows:

[477] The tenth attempted suicide involved his failed attempt to shoot himself with a rifle. His evidence was that he could not figure out a way to hold the barrel of the rifle in his mouth and still pull the trigger. He was very angry at having missed the last bus that would have taken him to his daughters' birthday. This, coupled with his ingestion of alcohol and marijuana, led him to seek out the rifle.

[478] Mr. Barney's next attempt occurred when " ... a lady I really, really liked dumped me".

[479] He described a final suicide attempt in which he "played chicken" with a semi-trailer truck. The circumstances leading up to that attempt were:

[480] At least some of these attempts do not appear to have had any relationship to the sexual abuse Mr. Barney suffered at AIRS. On his evidence they were triggered by other events that occurred in his life.

[481] Mr. Barney had three older brothers, one of whom died before he was born. He had six older sisters. The sister he felt closest to, Marie, died in 1991 of a drug overdose. It was very difficult for him to deal with the trauma of her death.

[482] Mr. Barney's eldest sister has been steadily employed as an education worker for the Ucluelet Band. She has no substance abuse problem. His next sister has never worked outside of the home and used to have an alcohol problem.

[483] Mr. Barney's sister Marie had been dependant upon alcohol. The next oldest sister is a housewife who has worked from time to time in seasonal jobs in the cannery. His next sister has never worked, has consistently collected welfare and has been an alcoholic since her teenage years. Mr. Barney's youngest sister has been a housewife and has had the odd seasonal job as a cannery worker. She has had an alcohol problem.

[484] Mr. Barney has two brothers still alive who have also worked as loggers since leaving school. He does not know his older brother's level of education; his closest brother, Perry, has a Grade 11 education.

[485] Mr. Barney's brother Roy and his sister Marie have each lost a son to suicide. In addition, Mr. Barney conceded that, "I lost a lot of my nieces and nephews in a short period of time through suicides".

[486] It is clear that in Mr. Barney's family there is a history of alcohol abuse. His father was a violent man. In his family and extended family there is a history of suicide.

[487] Mr. Barney's trial evidence differs from the information he provided to the expert witnesses. At trial he described four occasions on which he was sexually abused by Plint. He also said there were additional incidents that he did not describe.

[488] I have found that Plint sexually abused him on the four occasions he described in detail. I have also accepted his evidence that there were at least some other sexual assaults which for the most part occurred in Plint's office/bedroom at night.

[489] However after his trial testimony two expert witnesses interviewed him in 1999: Dr. Maria Root, a clinical psychologist, for Mr. Barney and Dr. O'Shaughnessy for the defence. The information he provided them concerning the nature and frequency of the sexual assaults differed markedly from his trial evidence. Dr. Root recorded in her report:

She also noted further forms of sexual abuse, which were never described by Mr. Barney in his trial evidence. She did testify that the circumstances of the sexual assaults was so extreme and so severe that even if the actual number were fifty, twenty or even ten her opinion would be the same.

[490] Dr. O'Shaughnessy recorded that he was told by Mr. Barney that he was anally raped two to three times per week although, according to Mr. Barney "it felt like 1,000".

[491] There is no evidence before me that Mr. Barney was sexually assaulted on average three times per week over the course of three school years, or that he was anally raped two to three times per week.

[492] While I have found that he was sexually assaulted more frequently than the four incidents that he described in court, his trial evidence does not support a finding that the abuse occurred with anything like the frequency referred to in both experts' reports.

[493] The weight to be attached to an expert's opinion is reduced as the factual basis of the expert's opinion diverges from the court's findings of fact based on the evidence at the trial.

[494] In this case while I have accepted that the sexual assaults were not restricted to four in number, I cannot conclude, based on Mr. Barney's trial testimony, that they occurred with anything like the frequency he described to Dr. Root and Dr. O'Shaughnessy. This reduces the extent to which I am able to rely on the opinions of these experts.

[495] This is not intended as a criticism of either Mr. Barney or the experts. It may well be that what he related to Dr. Root and Dr. O'Shaughnessy more accurately reflects what really occurred. It could also be that he felt more comfortable discussing these matters in the presence of these health care professionals than he did in an open courtroom. In part his underreporting in the courtroom could have been caused by the difficulty he was experiencing in relating these incredibly personal and painful experiences in the courtroom setting.

[496] When I concluded that the assaults by Plint likely exceeded the four Mr. Barney described, I was attempting to make an appropriate allowance for what I perceived to be his difficulty in recounting this type of evidence.

[497] However while I can conclude that the actual assaults were likely somewhat more than the four in number he described, there is a significant difference between my findings and the facts relied on by both Dr. O'Shaughnessy and Dr. Root. This difference must be considered when assessing their opinions.

[498] Dr. O'Shaughnessy understood that Plint anally raped Mr. Barney over a three-year period, approximately two to three times per week. Mr. Barney told him that the sexual assaults also involved mutual fondling and masturbation. At trial Mr. Barney described only one incident of anal rape and he made no reference to mutual fondling and masturbation.

[499] I accept Dr. O'Shaughnessy's opinion that the frequency and severity of sexual abuse are relevant to the degree of psychological damage that would be expected to develop therefrom: the more frequent and severe the assaults, and the longer the duration of the assaults, the greater the psychiatric damage that would be indicated. Conversely the less frequent and less severe the assaults, the lesser the extent of psychological damage one would expect to see.

[500] There were other inconsistencies between the "facts" that Dr. O'Shaughnessy gleaned from his interview with Mr. Barney and the trial evidence. Dr. O'Shaughnessy heard from Mr. Barney that he recalled hearing screams from other boys in Plint's room and at one time observed another boy fellating Plint. No such evidence was given in court.

[501] Dr. O'Shaughnessy understood from Mr. Barney that he had close relationships to his mother and father and that they were both "very loving". In fact the evidence suggests that Mr. Barney's home life with his parents was considerably more troubled. His father is more accurately characterized as having been violent both towards Mr. Barney and his mother. Mr. Barney was knocked unconscious by his father whom he saw beating and raping his mother. His father had a drinking problem that he says repeatedly caused family, health, job or legal problems.

[502] Dr. O'Shaughnessy understood from Mr. Barney that neither of his parents abused alcohol. Yet the evidence shows that Mr. Barney's father drank excessively throughout his life. While Mr. Barney told Dr. O'Shaughnessy that he had no serious health difficulties, his physical injuries have disabled him from ever returning to work as a logger.

[503] These factual differences reduce the weight that can be attached to Dr. O'Shaughnessy's opinion. It also makes it more likely that Dr. O'Shaughnessy would conclude that Mr. Barney's psychological problems were related to sexual abuse by Plint, rather than to the natural consequence of other factors and experiences which affected Mr. Barney during his lifetime. The factual inconsistencies call into question the reliability of the opinion insofar as Dr. O'Shaughnessy concludes that the sexual assaults by Plint are of causal significance with respect to Mr. Barney's psychological problems.

[504] Dr. Root diagnosed Post Traumatic Stress Disorder ("PTSD") caused by the Plint assaults. Dr. O'Shaughnessy disagreed. He says that symptoms of PTSD generally occur almost immediately after the trauma. Here there were no clear symptoms of PTSD prior to 1997. For this reason I do not accept Dr. Root's PTSD diagnosis.

[505] Dr. O'Shaughnessy did diagnose Mr. Barney as suffering from alcoholism. However he opined on the likelihood of a causal relationship with the sexual abuse in these terms:

[506] Dr. O'Shaughnessy also diagnosed Mr. Barney as suffering from a Personality Disorder which causes him to have problems in maintaining inter-personal relationships, difficulties in managing his anger and impulses, coupled with a sense of impaired self-esteem and difficulties in formulating an identity. He did conclude that the sexual abuse suffered by Mr. Barney contributed to this personality disorder.

[507] The defence says that I ought to disregard Dr. O'Shaughnessy's opinion because of the difference between the trial evidence and his factual assumptions. However even allowing for this, I conclude that the sexual abuse that Mr. Barney suffered at the hands of Plint was at least a material contributing cause of his personality disorder. This conclusion is supported by Dr. O'Shaughnessy's evidence that personality disorders tend to be multi-factorial in origin.

[508] The usefulness of Dr. Root's opinions is also limited because of the factual variation. She was under a fundamental misapprehension concerning the nature, frequency and severity of the sexual assaults to which Mr. Barney had testified in these proceedings. She believed that Mr. Barney was anally raped by Plint "hundreds of times". In her report she estimated conservatively that Plint anally raped Mr. Barney on over 300 occasions.

[509] It was her belief that Mr. Barney came from a stable supportive family and that there was only one act of violence by Mr. Barney's father.

[510] Dr. Root understood that Mr. Barney dropped out of school in Grade 11 because he was too depressed, he was drinking, he couldn't concentrate, it just felt too hard. Yet, at trial Mr. Barney testified that his concentration difficulties leading to his leaving school were caused by the fact that the girls distracted him in his class. Dr. Root did not understand this to be the main reason for Mr. Barney dropping out.

[511] While Dr. Root did note in her report that Mr. Barney attempted to commit suicide, she chose to omit from her report the significant fact that his first attempt occurred before Plint ever victimized him.

[512] Dr. Root did spend over six hours assessing Mr. Barney. However it appears that she conducted an assessment of a very different person than the one who testified at trial. As a result, her opinions are less than helpful to the court.

[513] I have concluded that Plint sexually assaulted Mr. Barney on the four occasions he was able to describe in some detail. Three times he was forced to perform oral sex on Plint and once he was anally raped. I have also found that although the frequency of the sexual assaults by Plint did not occur as often as set out in the opinions of Drs. O'Shaughnessy and Root, it is likely that he was assaulted on more than just the four occasions he was able to describe.

[514] These assaults were extremely serious and non-trivial. They involved a breach of trust by a caregiver who stood in the position of a parent to Mr. Barney. They occurred when he was a young, vulnerable child.

[515] In my view these acts and the context in which they occurred require that the court make a significant damages award.

[516] However the particular challenge in this case is to try to determine the extent to which these tortious acts caused or materially contributed to any ongoing psychological injuries. This requires the court to consider what Mr. Barney's life would have been like in the absence of the sexual assaults.

[517] Given Mr. Barney's family background, his life prior to AIRS, and the other traumatic experiences which he went through both at AIRS and afterwards, it is probable that Mr. Barney, in all likelihood, would have experienced significant psychological difficulties in any event of the sexual abuse at AIRS.

[518] Mr. Barney came from a violent household where he witnessed the worst possible familial violence: his father raping his mother. He came to understand that his mother never wanted to have him and that once he was born, his mother was forced to stay with his father and was subjected to ongoing abuse. Mr. Barney was often the target of his father's violence, being hit or beaten so often that he had marks or feared his father. His father's excessive drinking often caused problems even before Mr. Barney went to AIRS.

[519] At AIRS, Mr. Barney describes the "enormity" of the loss of his culture and connection with his family as being "overwhelming" and the effects "irreversible". Being sent to AIRS, he says, cost him his identity and self-esteem. Mr. Barney says that it is obvious that the loss of his culture had a "tremendous" effect on him as a person, leaving him "angry as hell".

[520] At AIRS, both before and after he was sexually abused, Mr. Barney regularly fought with other boys. He did so because he became terrified when somebody got angry with him and "it was meanness that took over me". This instinctive "meanness", and the overwhelming urge to resort to violence, pre-existed the sexual assaults and continued unchanged following the sexual assaults. Even after AIRS, and into adulthood, Mr. Barney says that he continued to fight anybody who showed anger toward him, insulted him or called him names. Mr. Barney's violent tendencies made him feel ashamed and alone and unable to make friends.

[521] When bussed to public school, Mr. Barney was the subject of racial discrimination and slurs. He developed a feeling of inferiority, but he continued to fight.

[522] Quite apart from his violent behaviour with other children, Mr. Barney's early years at AIRS were marked by violent physical attacks by supervisors and by being forced to run the gauntlet. He was tormented by the fact that he could not understand the reason he was being punished. In the year before he was sexually assaulted, on the first occasion he was made to run the gauntlet, he developed physical symptoms - stiffness, tightness, diarrhea - that were to return during the rest of his life whenever he was put in a stressful situation. The fact that Mr. Barney attempted to commit suicide after his first exposure to the gauntlet suggests the extent of his psychological difficulties well before the sexual assaults by Plint were ever committed.

[523] Mr. Barney turned to alcohol and marijuana upon entering high school. Peer pressure was instrumental to his use of these substances: "I always felt obliged to smoke [a joint] with them". He drank with his friends, "as long as we could afford it, we were together, we drank". As his consumption increased, his interest in school waned. Mr. Barney left school in Grade 11.

[524] These circumstances would likely have been present in Mr. Barney's life even if Plint had not sexually abused him.

[525] Mr. Barney's decision to become a logger cannot be attributed to the fact that Mr. Barney was sexually assaulted at AIRS. His two living brothers took the same course he did. One dropped out of school and began logging at 16 while the other started at age 17.

[526] As to Mr. Barney's work history, there is no evidence that he lost any work because of the sexual assaults. He was forced to stop working in 1996 or 1997 due to a physical condition unrelated to any of his experiences at AIRS.

[527] As is unfortunately the case for many of those who spend a career in the forest industry, Mr. Barney is now surviving on his disability pension. He has attempted to return to school to become a counsellor. According to Mr. Lawless, Mr. Barney's intellectual functioning is at a level that suggests that he does not have the capacity to pursue vocational or retraining programs, save for the briefest and most practically oriented.

[528] The fact is that Mr. Barney, for reasons totally unrelated to the sexual assaults by Plint, is physically disabled from working as a logger. He lacks the intellectual capacity to retrain for less physically demanding jobs.

[529] Throughout his adult working life, Mr. Barney continued to abuse alcohol and marijuana and get into fights. From his evidence, this would seem to be not uncommon for those who spend so much time in logging camps. In describing life at the camp at Franklin River, he says that, "probably 75% of the people drank and did drugs". Given its ubiquity, it is unlikely that this widespread logging camp conduct can be related to childhood sexual abuse.

[530] Mr. Barney's father was an alcoholic. The sister closest to him died of a drug overdose. At least seven of his siblings have had significant alcohol and drug abuse difficulties. Mr. Barney apparently told Dr. O'Shaughnessy that virtually all his family members have relationship difficulties.

[531] At the time of his assessment, Dr. O'Shaughnessy diagnosed Mr. Barney as suffering from a personality disorder and alcoholism. Dr. O'Shaughnessy accepted Dr. Brasfield's earlier PTSD diagnosis. However since Dr. Brasfield was not called as a witness, I cannot conclude that at any time in his life Mr. Barney suffered from PTSD as a result of the proven sexual assaults by Plint.

[532] The assaults Mr. Barney suffered at the hands of Plint did represent an egregious breach of trust by a person who occupied the role of a parent. The anal and oral rapes were extremely violent and brutal and were accompanied by threats. Not surprisingly they caused Mr. Barney physical and emotional pain. They occurred after he had been removed from his home community and transported to AIRS.

[533] I would award Mr. Barney $125,000 in non-pecuniary and $20,000 in aggravated damages. Because aggravated damages are compensatory in nature, both will be assessed against the Church and Canada.

[534] I would award punitive damages of $40,000 against Plint only.

[535] With respect to future care costs, Dr. O'Shaughnessy does not believe that Mr. Barney requires any pharmacological intervention. The therapy that Dr. O'Shaughnessy recommends is primarily designed to address Mr. Barney's anger problems. I would allow $5,000 for future counselling.

[536] Mr. R.F.'s family led a migratory lifestyle, living either in abandoned shacks with other families, or on their fishing boat. Mr. R.F.'s father played no significant part in his upbringing in those early years. Mr. R.F.'s life prior to AIRS was unsettled and often unhappy. He conceded that he never had a role model for a father figure.

[537] Mr. R.F. had six older siblings or stepsiblings who were at residential school during the winters while he was young. When his older siblings returned in the summers Mr. R.F. did not really like them: they seemed "quite mean" and he did a lot of crying when they were around.

[538] Mr. R.F. was five years of age when he went to AIRS. He described the transition from a quiet isolated life on the West Coast to being thrust into this large institution as "terrible". The food was radically different. There were rules, order, physical discipline and corporal punishment, which were things he had not experienced.

[539] Mr. R.F. spoke of a prison mentality at AIRS where the bigger boys would prey on the younger boys. There was a hierarchy in the school with alliances built around both tribal groups and relatives. There was a lot of physical violence and a lot of emotional abuse among the students themselves.

[540] At the age of six Mr. R.F. was sexually abused by an older boy who performed oral sex upon him. After Mr. R.F. was moved to Dorm 1 in the fall of 1964 (which was also after Plint had started assaulting him), approximately eight older male students sexually assaulted him. There were many such assaults: Mr. R.F. estimated that he was sexually abused by those other students at least three to four times a week for several months. The nature of the abuse was simulated intercourse with the older boys approaching Mr. R.F. from behind and placing their penises between Mr. R.F.'s legs, simulating intercourse to orgasm.

[541] Mr. R.F. found the assaults to be very degrading. He believed when he was suffering from these abuses by the older students that he had been literally "thrown to the dogs" when placed in Dormitory 1.

[542] Mr. R.F. agreed that he lived with some degree of fear almost every day at AIRS. He was afraid of being physically and emotionally abused by other boys. He had a fear over certain periods of being involved in homosexual activity with other boys. He was in fear of being physically abused by adults and supervisors. He also feared Plint.

[543] At AIRS Mr. R.F. excelled academically. He was at the top of his class from Grades 1 to 6 and was named class valedictorian in Grade 6. That changed when he, along with the other AIRS residents, were bussed to the public school in Port Alberni for Grade 7. In his direct examination, Mr. R.F. explained:

[544] He accepted as accurate the following description of his transition to public school set out in the foreword he wrote to the book "Resistance and Renewal":

[545] In 1957 or 1958, Mr. R.F.'s parents moved to the Tseshaht Reserve located just beyond the fence surrounding AIRS. Mr. R.F. would go home during the school breaks: Christmas, Easter, and the summer holidays.

[546] He found that AIRS students were not welcome on the Reserve. He believed that the children on the Reserve treated him differently because of the fact that he was from AIRS. They tried to beat him up.

[547] The fact that his family home was so close to AIRS caused him much unhappiness. While he was sent to the residential school, his mother took in boarders for money. These included some of Mr. R.F.'s cousins. He testified that the fact that he was sent away from the family home while his cousins were able to stay at his house only 200 yards away from the AIRS property caused him anger and confusion. He does not recall his parents ever coming to see him while he was at AIRS.

[548] Mr. R.F. says that the most damaging consequence of his attendance at AIRS was the separation and isolation from his family.

[549] With respect to the effect on the relationship with his father, Mr. R.F. accepted as accurate the following from his foreword to "Resistance and Renewal":

[550] In his direct examination he was asked the following open-ended question:

His response indicates the relative impact of the familial separation:

[551] Mr. R.F. says that he began drinking alcohol at the age of 12. While this occurred after Plint sexually abused him, it is not clear the extent to which these are causally connected.

[552] Mr. R.F. started drinking with some of his closer friends. They would arrange to have an adult or older person purchase the alcohol. He says that the same sort of gathering occurred when he went off to sniff gasoline; that was something he would do with a group of his friends. He says there was perhaps "half a dozen of us or so" who would engage in that activity. It is likely that his drinking began from his social association with other like-minded individuals, a phenomenon not unheard of in the wider teen community beyond just those who attended Indian Residential Schools.

[553] Mr. R.F. was expelled from AIRS for bringing alcohol to a school dance in Grade 9. He then moved into his family's home on the Tseshaht Reserve where he lived during Grades 10 and 11. Mr. R.F. says his use of alcohol steadily increased. He explained:

[554] Mr. R.F.'s academic performance declined. At AIRS, he completed up to Grade 9 without failing a course. After moving home for Grade 10 he failed Social Studies and Math. Mr. R.F. agreed that he had great difficulty studying because the home was so crowded. There were up to 21 people living in what Mr. R.F. described as "this tiny little house". His absenteeism from school increased. He missed 16 days of school in Grade 10. Mr. R.F.'s academic performance deteriorated the next year. He missed 30 days of school in Grade 11, which he attributed to alcohol abuse.

[555] Mr. R.F. agreed that his drinking and drug use greatly increased after he got out of AIRS and started living at his parents' house. He says this was due to his new found freedom away from the discipline of residential school and his many friends who drank with him. In re-examination Mr. R.F. was asked about other factors that were responsible for his increased drinking. He testified:

It is significant in his answer that Mr. R.F. did not connect his drinking pattern with the sexual assaults. Rather he linked the increased drinking to his memories of his confinement at AIRS.

[556] Mr. R.F. recognized the effect his move home was having on his education. He approached the Department of Indian Affairs and asked them if he could go on the "Boarding Out Program" to complete Grade 12 while living in Nanaimo at the home of a United Church Minister. He described this decision to leave his parents' home in 1967 as follows:

Mr. R.F.'s marks did improve significantly in Grade 12.

[557] Mr. R.F. was born with retinitis pigmentosa. Before he went to AIRS he suffered from night blindness. He was declared legally blind when he was in his late teens. This was traumatic. Over time, Mr. R.F.'s vision continued to deteriorate. He was able to read type until 1985. Now he can only see the presence of light.

[558] After Grade 12 Mr. R.F. went to Victoria where he attended Camosun College to upgrade his high school status. He left that course before Christmas, 1968. He moved to Nanaimo in 1969 and took a timekeeping and first aid course at B.C. Vocational School. Although he received the top marks in his class, he was the last person to be hired. He believes he was passed over by employers because of his race.

[559] Mr. R.F.'s first job was with the B.C. Forest Service in payroll accounting at a forestry camp in McKenzie. His consumption of alcohol increased. He says that in logging camps at the time, the consumption of alcohol and drugs was very much part of the after work hours activity and formed part of the recreation of the camp.

[560] After ten months in McKenzie, Mr. R.F. returned to Nanaimo and enrolled in a certified management accountant course. Ten months later he took another job as a timekeeper with B.C. Forest Service in Golden.

[561] He described the time in Nanaimo between his employment at McKenzie and Golden as the "tail end of the hippy era". A lot of people he associated with were regularly using drugs. Mr. R.F. described using marijuana, LSD, MDA, speed and cocaine during that period. Drinking was a significant problem: he was asked to leave the school dormitory because of his drinking. He did so and moved into a communal "hippy house". One of the residents was a drug dealer and hence there was always a ready supply.

[562] Mr. R.F. also entered into a relationship with Theresa Chamberlain while he was in Nanaimo. He married Ms. Chamberlain and they moved to Golden. They felt isolated as there were no other Native people in the community. Mr. R.F. says that Golden was the most racist town he ever lived in.

[563] He spent weekdays at camp, returning to Golden to stay with Ms. Chamberlain on weekends. She was greatly affected by the feeling of isolation; it increased her alcohol consumption. They both drank on weekends; Ms. Chamberlain frequently drank during the week. On weekends when Ms. Chamberlain became very drunk, she became very violent and would attack Mr. R.F. physically and throw things at him. Their drinking appears to have been caused by their feelings of isolation rather than by Mr. R.F.'s AIRS experience.

[564] The two continued to drink after they moved to Valemont. Ms. Chamberlain would go out to bars while Mr. R.F. was working. This behaviour depressed him. While living in Valemont he developed an ulcer and was hospitalized for ten days in Edmonton. Mr. R.F. explained that it was at this time of his life when he was most depressed and felt suicidal. He described the time as a horrible period with his wife where her physical abuse against him was part of their regular interaction. The two lived together in Valemont for approximately two years.

[565] In 1973 they moved to Victoria where Mr. R.F. continued to work with the Forest Service. They both continued to drink; he used LSD, MDA and marijuana. Mr. R.F. then accepted a job with the West Coast Tribal Council and returned to Port Alberni.

[566] From 1973 to 1975 Mr. R.F. was employed in a series of jobs with the West Coast Tribal Council. Each job change was his decision. While employed with the Tribal Council, Mr. R.F. was drinking heavily and abusing an assortment of drugs. He says that he became addicted to cocaine and began shooting drugs with a needle.

[567] At the time Mr. R.F. was starting to use cocaine, he and Ms. Chamberlain had a fight that led to their separation.

[568] After Ms. Chamberlain left, Mr. R.F. says, "My place became a party house". He allowed two cocaine dealers to move in which guaranteed him a ready supply of cocaine. Mr. R.F.'s substance abuse continued to be an integral part of his everyday activities within his social circle.

[569] After leaving his employment with the West Coast Tribal Council Mr. R.F. moved to Zeballos where he worked as a timekeeper for a logging company. He stayed from 1975 to 1976. He left that job when he discovered that some of the business affairs of his employers were not being conducted correctly. While at the camp in Zeballos, Mr. R.F. was one of a group of residents who regularly used alcohol and drugs. He continued to be sexually active with a number of women. He reports no difficulty in those sexual relations. When Mr. R.F. had a break in his work schedule and was able to leave the camp in Zeballos, he would travel to Vancouver where he would drink and party.

[570] After leaving his job in Zeballos, Mr. R.F. moved once again to Port Alberni and then to Nanaimo where he lived from 1976 to 1981. In Port Alberni he moved into his parents' home and sold marijuana. Mr. R.F. met his current wife, Edith, in 1976. At the time, they were both drinking and using drugs.

[571] Mr. R.F. testified that his next formal job started in 1981 when he established Theytus Books. It is not entirely clear how Mr. R.F. spent his time between 1976 and 1981. He did apply for some jobs during that period but without success. To a certain extent he accepts that his visual impairment was related to his lack of success, but he believes that he had certain skills that he should have been able to market despite his blindness. However there is no evidence that would support a finding that his lack of employment over that period was related to his childhood experiences at AIRS.

[572] Despite his lack of formal employment between 1976 and 1981, Mr. R.F. did engage in a number of income earning activities. In 1976 and 1977 he was occupied almost full-time with a shake and shingle operation. He says that he was involved in other activities from 1978 to 1981 that kept him active throughout that period and which provided him with satisfaction.

[573] In 1981 Mr. R.F. started his publishing company, Theytus Books. He was involved with that company through to 1984. In 1985 he was active in assisting a Native organization. He lived in Penticton from 1982 to 1985.

[574] From 1986 to 1988 Mr. R.F. worked as an editor in Vancouver. In 1989 he worked as a fundraiser and an art festival organizer. After 1991 Mr. R.F. was involved in a number of activities including working with the Canadian Mental Society and publishing a newspaper. He testified that the activities that he has engaged in between 1991 and 1999 are all activities that he has enjoyed doing very much and from which he has obtained great satisfaction.

[575] Mr. R.F. agreed that between being employed earning an income and being occupied doing volunteer work or other work on his own account, he has been active and engaged virtually full-time in a vocation from the 1970's to January, 1999 when he enrolled in a psychology course at Malaspina College. He agreed that he enjoyed the work and the volunteer activities that have engaged him from 1970 until January 1999.

[576] However he says that as a result of his declining grades after the sexual assaults started, he was transferred from the academic to the much easier commercial program. He says further that had he remained in the academic program that academic accreditation would have resulted in increased lifetime earnings. I am unable to find that link in the evidence.

[577] Since completing high school Mr. R.F. has been engaged full-time in activities which he has enjoyed. Some of these were formal jobs, some were volunteer positions and some were in furtherance of his personal goals at the time. In light of this it is difficult to conclude that the sexual assaults which were inflicted on Mr. R.F. by Plint at AIRS had any effect on the amount of income which he has earned over his lifetime. As Mr. R.F. said, "Well, I've always considered myself able to work". From his own evidence and to his credit, he has occupied himself "pretty much full time" in activities which he has enjoyed and which have provided him satisfaction throughout his adult life.

[578] Describing his relationship with his second wife Edith, Mr. R.F. says that like any marriage they have had some ups and downs but essentially it is a good relationship. Edith F. testified that her main concern about her husband's behaviour was his detachment with the rest of their family. In her words:

[579] Given his ongoing use of marijuana, it is perhaps not surprising that Mr. R.F. tends to withdraw from family activities as described by his wife.

[580] Mr. R.F.'s father had a Grade 2 or 3 education and was a fisherman. He believes that his mother went to school for five to six years. She never worked outside the family home. Mr. R.F. had a total of 15 siblings, three of whom are deceased. Of the 12 living siblings, all have suffered from a dependency on alcohol.

[581] Mr. R.F.'s eldest brother had a Grade 8 education and only worked at odd jobs in fishing and berry picking. The next eldest brother had a Grade 6 education and never worked due to health problems. His eldest sister had a Grade 8 education and worked as a fish plant worker and chambermaid. The next sister had a Grade 8 education and worked as a barmaid.

[582] The next eldest child, a brother, had a Grade 8 education and has been unemployed for the last ten years having previously worked in fishing and logging. He has recently started back to work. The next eldest sibling, a sister, had a Grade 10 education and never worked. Another brother had a Grade 8 education and has worked as a logger since age 17. Another brother had a Grade 10 education and has worked as a journeyman carpenter. Mr. R.F. had a sister with Grade 12 education who worked as a barmaid and fish plant worker as well as selling Indian art. He has another sister with a Grade 10 education who has never worked. Finally, Mr. R.F. has two siblings with Grade 12 education. One, a brother, is an office administrator for an Indian Band and the other, a sister, is a Band office worker and community health nurse.

[583] Dr. O'Shaughnessy described his initial impressions of Mr. R.F. as follows:

This assessment was consistent with my observations of Mr. R.F. when he gave his evidence.

[584] Dr. O'Shaughnessy set out his opinion concerning Mr. R.F. at page 10 of his report:

[585] In summarizing Mr. R.F.'s current condition and his prognosis, Dr. O'Shaughnessy made the following comments:

[586] In cross examination, Dr. O'Shaughnessy testified that according to Mr. R.F. his drinking started "not as a result of relieving stress but because other young men his age were also drinking and that was the socialization of that peer group". As to their marital relationship, Dr. O'Shaughnessy says that Mr. R.F. told him that "they are now quite happy together."

[587] During Dr. O'Shaughnessy's cross examination time was spent on a hypothetical question based on assumed facts concerning Mr. R.F.'s remoteness from his family and his selfish behaviour while at home or out socially. In response, Dr. O'Shaughnessy made a number of observations with respect to Mr. R.F.'s current home situation. He stated:

And further:

[588] In discussing the reported depression that Mr. R.F. went through during the mid 1980's, Dr. O'Shaughnessy explained the difficulties in attributing a cause:

[589] I conclude from Dr. O'Shaughnessy's evidence that if Mr. R.F. was ever properly diagnosable with a psychiatric condition it was relatively mild and Mr. R.F. has recovered. Currently, he has no diagnosable psychological conditions and requires no ongoing therapy.

[590] Dr. Susan Penfold is a psychiatrist. She gave expert evidence on behalf of Mr. R.F.. However in doing so she was operating on the basis of an assumption as to the nature and frequency of the sexual assaults he suffered which was not in evidence. That limits the usefulness of her opinion.

[591] Her opinion is also coloured by her eagerness to assume the role of advocate for Mr. R.F.. This is illustrated by her response to Mr. R.F.'s own denial that he was ever anally raped by Plint. Despite his insistence that it never happened, Dr. Penfold thought it appropriate to state in her report that, "it seems likely that the abuse may have progressed to anal penetration but that this is too painful and threatening for R.F. to recall".

[592] While it might have been appropriate for Dr. Penfold to raise this as a possibility, to state it as a probability in the face of Mr. R.F.'s consistent and unequivocal denials demonstrates a partisanship which undermines the usefulness of her evidence.

[593] Dr. O'Shaughnessy challenged the appropriateness of the following statement made by Dr. Penfold at page 9 of her report:

In response to that, Dr. O'Shaughnessy said:

[594] Dr. O'Shaughnessy also took issue with Dr. Penfold's suggestion that Mr. R.F.'s abuse of alcohol and cocaine and his dependence on marijuana could be seen as avoidance symptoms. To that, Dr. O'Shaughnessy stated:

[595] In response to Dr. Penfold's suggestion that Mr. R.F. met the criteria for depressive disorder, Dr. O'Shaughnessy stated:

[596] I prefer the evidence of Dr. O'Shaughnessy to the evidence of Dr. Penfold with respect to Mr. R.F.'s psychological symptoms.

[597] Mr. Derek Nordin is a vocational expert. He gave expert evidence for Mr. R.F.. However his vocational assessment is hampered by the fact that he has no experience or knowledge concerning the vocational prospects available for the blind. While he did base his opinions on some brief conversations with some individuals associated with the Canadian National Institute for the Blind, I do not accept that this entitles him to opine on Mr. R.F.'s vocational prospects. If it does, little weight can be attached to such an opinion. In my view something more should be required in order to express an expert opinion to the court concerning the prospects of a visually challenged individual such as Mr. R.F..

[598] I have concluded that Plint sexually assaulted Mr. R.F.. Two of the incidents involved Mr. R.F. performing oral sex on Plint, mutual masturbation, and Plint placing his penis between Mr. R.F.'s legs and simulating intercourse. Although there are no particulars I accept that he was assaulted on four other occasions in 1962. I also find that there is further evidence of some undescribed form of sexual assaults committed by Plint on Mr. R.F. in 1963 both on and off the AIRS premises. These likely numbered between six and twelve incidents. Given Plint's pre-disposition I accept that these assaults in 1963 were of a sexual nature.

[599] These assaults were committed against a vulnerable child by a person in authority in the circumstances in which Mr. R.F. found himself at AIRS. The assaults were serious. I find that it is likely that these assaults were a material contributor to the periodic bouts of depression that Mr. R.F. has grappled with in his life.

[600] I conclude that an appropriate global award for non-pecuniary and aggravated damages for Mr. R.F. would be in the amount of $85,000. There will be an award of punitive damages against Plint alone of $20,000.

[601] Mr. R.F. has not proved either a past or future income loss. He testified that he has always been able to work. To his credit he has occupied himself full-time and has been engaged in activities that have brought him satisfaction.

[602] Mr. R.J. has given somewhat different versions of his sexual assaults to the court, to expert witnesses Mr. Robert Colby, a psychologist who gave evidence for Mr. R.J. and to Dr. Derek Eaves, a psychiatrist who testified for Canada. This makes it more difficult to determine the specific nature of the tort (or torts) which have been committed and which must serve as a foundation for an award of damages.

[603] Due to Mr. R.J.'s heart condition, the defendants agreed to allow plaintiff's counsel to lead Mr. R.J. during his direct examination in February 1998 about the specific nature of Plint's sexual assaults. The defendants agreed not to cross-examine Mr. R.J. on that evidence and instead only put into evidence a number of his interrogatory answers.

[604] With that assistance Mr. R.J. testified at trial of a single incident of sexual assault by Plint. He says it involved mutual fondling of genitals, mutual masturbation and Mr. R.J. performing oral sex on Plint. Mr. R.J. says that Plint told him not to tell anybody of the assault. He could not recall if Plint said what would happen if Mr. R.J. did tell.

[605] Mr. R.J.'s second description, given to Mr. Colby, is somewhat different. Mr. Colby says Mr. R.J. told him that Plint sexually abused him on multiple occasions over a two to three year period. The sexual assaults went beyond mutual fondling/masturbation and fellatio by Mr. R.J. on Plint to also include "anal/penile penetration". Mr. R.J. also told Mr. Colby that Plint threatened to beat him if he did not perform such sexual acts, or if he disclosed those acts.

[606] Yet another version was provided to Dr. Eaves who recorded:

[607] These three descriptions differ markedly. The expert witnesses in this case agree that the nature, severity, frequency and duration of the sexual assaults, which an individual suffers, are very significant factors for predicting the likely psychological reaction. It is therefore important that the court be satisfied that the plaintiff has proved to the appropriate standard those specific aspects of the alleged tort.

[608] There were other variations in Mr. R.J.'s evidence. In his examination-in chief, he testified that prior to AIRS he lived with his mother, his sister, his grandparents, and his grandparent's son at his grandfather's house. Yet in cross-examination, Mr. R.J. conceded that he was not sure who he lived with prior to AIRS. He also testified that he did not believe that his mother lived with him the whole time prior to AIRS. To Dr. Eaves, Mr. R.J. reported that he was brought up by different relatives and he never had a close relationship with his mother. This evidence makes it difficult to make a determination as to what Mr. R.J.'s family circumstances were prior to AIRS.

[609] Mr. R.J. was inconsistent in describing the quality of his sexual relationships. Mr. Colby recorded his statements as follows:

[610] Yet to Dr. Eaves, Mr. R.J. provided a more positive description:

[611] Mr. R.J. also gave different descriptions of how his alcohol abuse has affected his work. Mr. Colby was told that between 1962 and 1970, Mr. R.J., "has lost jobs repeatedly because of his drinking problems". Yet to Dr. Eaves he reported:

[612] While the earlier discussed change to the Limitation Act now allows plaintiffs who have been sexually assaulted to bring these once barred claims before the courts long after the events occurred, there has been no change to the common law burden of proof that they must meet.

[613] Mr. R.J. has the right to assert that over forty years ago he was the victim of sexual assault. But he also has the burden of proving both that assertion and the compensable injuries suffered as a result to the required standard.

[614] Mr. R.J.'s evidence concerning his life before AIRS must be viewed with caution given the various contradictions in his evidence and his own admission that, at best, his memories of his early life are vague. However I do take from his evidence that he was not born into a stable family setting. He does not know the identity of his father. Mr. R.J. is not sure who he lived with prior to attending AIRS. He did not believe that his mother lived with him throughout the period before he went to AIRS. Mr. R.J. told Dr. Eaves that he was brought up by different relatives and that he has never had a close relationship with his mother or his siblings. He does believe that it was his grandfather who fulfilled the parental role in his life before he went to AIRS.

[615] When he arrived at AIRS Mr. R.J. felt very lonely. He could not understand the English instructions and felt afraid. He had never been away from his family. Mr. R.J. agreed that even apart from the sexual abuse that was inflicted upon him by Plint, his time at AIRS was very traumatic. He found it difficult to adjust to life at the institution as compared to life in his community. Mr. R.J. agreed that one of the significant differences was the loss of his freedom.

[616] Mr. R.J. agreed that he was terrified for the entire ten-year period he was at AIRS. That terror related to the "jail atmosphere" at the school and the loss of freedom. He also lived in fear of the other boys and the violence that they might do to him. Violence among the boys was a daily event and Mr. R.J. recalls being was beaten.

[617] Mr. R.J. explained that he lived in fear of the adults at AIRS who disciplined him physically, mostly with the strap. He found the food at AIRS to be different from what he was used to, which troubled him. He was put on a special nourishment program.

[618] Mr. R.J. agreed that there was a hierarchy among the boys at the residential school and that, as a younger boy, he lived in fear of the gangs of bigger boys. He believed that he was regularly subjected to racism by the supervisors. He says that they were always calling him "stupid" which troubled him and prevented him from finding anyone "to relate to".

[619] Mr. R.J. attended classes at AIRS from 1949 to 1957 when he completed grade 8. From September 1957 to June 1958 Mr. Johnson was bussed to his Grade 9 classes at A.W. Neill School. He found the adjustment very difficult. This was his first opportunity to mix with large numbers of non-Native people. He found that to be "very" upsetting.

[620] He explained that there was a lot of racism at A.W. Neill School. He was not used to this. He was afraid and he tried to stay away from situations that caused him to have arguments with other people.

[621] Mr. R.J.'s grades went from A's and B's in Grade 8 at AIRS to C's and C+'s the next year at A.W. Neill. He agreed that part of the reason was his difficulty in adjusting to the racism and other troubles at A.W. Neill School.

[622] While resident at AIRS, Mr. R.J. occasionally returned in the summers to stay with his mother at the canneries. He remembers his mother drinking. He recalls being troubled by the reception he received when he returned home. After two to three years at AIRS when he first returned home, he found he could no longer speak any words in his Native language. Neither could he understand one word spoken to him. This was a shock to him. He explained that he felt abandoned:

[623] Mr. R.J. began drinking alcohol at age 15 or 16 while he was at AIRS. This began as part of an enjoyable activity with his friends. Mr. R.J. explained that one of the things that he enjoyed at AIRS was when he and some of his friends:

Mr. R.J. stated that there were at least half a dozen or so boys involved in this incident. By this time, Plint had left AIRS. When asked about the frequency of his drinking, Mr. R.J. explained that any time the group of boys could collect enough money they would get together and do some drinking. He estimated that this group would drink alcohol less than once a week from Grade 7 until he finished Grade 10 and left AIRS.

[624] Mr. R.J. agreed that he only drank at AIRS with one or more of the other boys from the school. It was "something to do". Drinking was one of the ways that allowed him to feel that he could belong to a group of people. He explained that drinking was a way to, "make ourselves a little more macho I guess instead of feeling inferior." He agreed that drinking was really part of the peer pressure associated in being with the group of boys from AIRS.

[625] Mr. R.J.'s believes that the principal cause of his drinking was the separation from family and home community that he suffered from being sent to AIRS.

[626] Mr. R.J. explained that drinking would make a feeling that he had go away. When asked to describe the feeling he was speaking of, Mr. R.J. stated:

[627] Mr. R.J.'s own words demonstrate the profound impact on his life and emotional well being caused by the ten-year separation from his family while he was at AIRS.

[628] Mr. R.J. left AIRS in June 1959. That summer he went to live with his family at the cannery. His drinking increased. He says the cannery was "sort of a meeting place". There were other students there from residential schools who, according to Mr. R.J., were inclined to "raise hell" because, "we were out of jail". Mr. R.J. listed the factors present that summer that led to his increased drinking as including: new freedom; a bunch of young men together; women; and money. Mr. R.J. also began using marijuana at the canneries.

[629] At summer's end Mr. R.J. looked for a job but his priority was to improve his education. He considered returning to AIRS to pursue his education. However he was told that it would be difficult for him to adjust to residential school life at the age of 20.

[630] Mr. R.J. moved to New Hazelton lived with his mother and stepfather. He enrolled in a Grade 11 course at Hazelton Secondary School. He drank occasionally at home with his mother and stepfather who were both heavy drinkers. He also drank outside the home.

[631] Mr. R.J. described his difficulty in adjusting to life after AIRS as follows:

[632] By the time he was in Grade 11 at the age of 21 Mr. R.J. had had several short-term relationships with women.

[633] While in Grade 11 he was caught stealing a car. As a condition of his release he trained in heavy-duty mechanics at Prince George Vocational Institute. Mr. R.J. continued to drink alcohol while working at Northwood Pulp and Paper. He drank with his co-workers and friends at bars and in homes.

[634] Mr. R.J. left his job at Northwood Pulp and Paper. He took a short holiday and when his money ran out he went to work at Gold River Pulp and Paper in 1969. He continued to drink heavily at Gold River with his co-workers.

[635] He then left Gold River and took a job at Ben Ginter's Brewery. He continued to drink heavily with his friends and co-workers. He was fired from Ben Ginter's for drinking on the job. Shortly afterwards he was hired by the Cassiar Cannery. While working there in 1971 he met his wife Kate.

[636] Mr. R.J. agreed that from the time he completed his course at Prince George Vocational Institute and began working until the time he met his wife in 1971 he had been essentially steadily employed with few breaks between jobs. He earned what he believed to be a good income over that period. He had been involved in a number of relationships with women, albeit of a short term nature. He had friends and co-workers with whom he socialized and drank. He agreed that from 1960 until he met his wife in 1971 he was fairly happy in his life. Specifically he was not troubled by any memories of residential school.

[637] Mr. R.J. worked in a series of jobs with B.C. Buildings Corporation from 1972 to 1984, primarily as a boiler engineer. That ended when the Skeenaview Hospital in Terrace was closed and he was laid off. Mr. R.J. believed that he was well paid and he was satisfied with his income while with B.C. Buildings Corporation.

[638] After the Skeenaview Hospital layoff in 1984, Mr. R.J. returned to school at Vancouver Vocational Institute for two years after which the Vancouver School Board hired him. He worked there from 1986 until he retired in 1995. During the nine years Mr. R.J. was satisfied with his income.

[639] Mr. R.J. retired from the School Board in 1995 due to health problems unrelated to his experience at AIRS: ankylosing spondylitis and congestive heart failure. He has applied for a disability pension from the Canada Pension Plan because he is physically disabled from working. His physician has told him that he can no longer work due to his physical problems.

[640] Mr. R.J. testified that it was not until after his retirement, when he met Mr. Willie Blackwater at a Bingo Hall in 1996, that he began to be bothered significantly by memories of his experiences at AIRS.

[641] I conclude from Mr. R.J.'s employment history that there is no evidence that would support a claim for any income loss causally related to the sexual assaults he suffered at AIRS.

[642] After stopping for more than ten years, Mr. R.J. began drinking alcohol again in 1997 when he and his wife moved back to the village of Kitsegukla. When asked why he started drinking alcohol again he said:

[643] In his examination in chief, Mr. R.J. testified that he has had nightmares about AIRS and about Plint "all along when I was drinking". But this is difficult to reconcile with his evidence that he was not significantly bothered by memories of AIRS until after meeting Mr. Blackwater in 1996.

[644] Also Mr. R.J. has never complained to any of his doctors about problems with nightmares relating to residential school. The only record of nightmares in the notes of Mr. R.J.'s family doctor is a reference to a dream in which Mr R.J. saw his wife's sister. He agreed that he did not tell either Dr. Eaves or Mr. Colby about having had nightmares of Plint. Accordingly I am unable to conclude that Mr. R.J. has had such nightmares about Plint.

[645] With respect to his sexual functioning, Mr. R.J. agreed in cross-examination that he had never experienced any sexual difficulties in the relationships he has had with between 10 to 15 sexual partners. He also agreed that he enjoyed a good sexual relationship with his wife until she developed Lupus in 1995.

[646] Mr. R.J. stated that he was troubled by depression and started on an anti-depressant in December 1995. He testified that at that time his depression was related to his deteriorating state of physical health.

[647] Mr. R.J. has five living siblings, all of whom have had alcohol problems. Two of his siblings have abused marijuana. As set out above, Mr. R.J.'s mother was an alcoholic. Mr. R.J. does not know who his father was.

[648] Dr. Eaves assumed for the purposes of his opinion that Mr. R.J. was the victim of multiple sexual assaults by Plint. That is inconsistent with Mr. R.J.'s trial testimony that there was only one sexual assault. Accordingly, Dr. Eaves' opinions must be treated with caution. However even though Dr. Eaves assumed a history of multiple sexual assaults, he concluded that they had a very minor, if any, role in the development of Mr. R.J.'s psychological problems.

[649] Dr. Eaves did refer to the history he obtained from Mr. R.J. concerning his heart problems and their impact on his depression:

[650] Dr. Eaves went on to say:

[651] With respect to the plaintiff's contention that he suffers from PTSD, Dr. Eaves stated:

[652] With respect to Mr. R.J.'s abuse of alcohol, Dr. Eaves stated:

[653] Dr. Eaves went on to say:

[654] Dr. Eaves concluded his report concerning Mr. Johnson with the following comment:

[655] In my view Dr. Eaves' report raises considerable doubt as to the extent to which, if any, the single incident of sexual assault, which Mr. R.J. described in his trial testimony, caused him psychological injuries entitling him to recover damages. This is underscored by the fact that Dr. Eaves' opinion was based Mr. R.J.'s report of multiple sexual assaults.

[656] Mr. Colby's opinion as well was based on facts not before the court and hence was unhelpful.

[657] The plaintiff says I should take into account the known fact that victims of sexual abuse tend to disclose their assaults gradually over time. Because Dr. Ley and Dr. Eaves assessed Mr. R.J. after he testified, counsel submits that his disclosures to those medical professionals are a more accurate account of the number of times he was assaulted.

[658] Even accepting the plaintiff's proposition about disclosure over time, it is nonetheless the fact that the court must base its decision on the evidence adduced at the trial. I have concluded that Mr. R.J. has proven that Plint sexually assaulted him on the one occasion that he described in his trial testimony in February 1998. I have also found that this type of assault likely occurred on more than that one occasion. I also conclude that he has not proven that the sexual assault caused or contributed to any psychological injury beyond the de minimus level.

[659] I would award non-pecuniary and aggravated damages of $20,000. Punitive damages of $3,000 will be awarded against Plint.

[660] Mr. R.J. has not proved any past or future income loss. Any future counselling needs will likely arise from his deteriorating state of physical health and not from the one incident of assault proved.

[661] Ms. M.J.'s evidence during the damages phase of the trial was as unsatisfactory as her evidence during the liability phase which caused me to dismiss her claim. Her counsel says that her testimony was marked by "obvious confusion and contradiction" and that because of her severe psychological disability "it is hard for her to keep the most simple matters straight." Despite my preference to have nonetheless made a damages assessment I have found that the inconsistencies in her evidence made it virtually impossible to make the findings of fact which could inform such an assessment.

[662] Ms. M.J. testified that her father, Simon Angus, was very loving and that he used to visit Ms. M.J. and her family until she went to AIRS. She said that she had a clear recollection of these visits. She said that her father died while she was at the residential school.

[663] Yet Ms. M.J. told Dr. Penfold that her father died before she went to AIRS. Her explanation for this discrepancy is that when she went to see Dr. Penfold she was "in pain". Ms. M.J. also told Mr. Lawless that her father died when she was very young and she had no recollection of him. She says this inconsistency was also due to the fact that "I was in pain".

[664] Ms. M.J. testified in chief that her mother did not drink before she went to AIRS. She continued to deny that her mother drank before she went to AIRS even though she acknowledged that her aunt told her that she was apprehended because of her mother's drinking. Yet Ms. M.J.'s physician recorded the following conversation with her in 1994:

Ms. M.J. explained this by saying that she was prepared to lie to get back at her mother for sending her to residential school.

[665] Ms. M.J. said that her mother never disciplined her by hitting or spanking her before she was sent to AIRS. After further questions she agreed that she had been spanked so hard by her mother that she had to live with her grandmother for a while.

[666] Ms. M.J. testified in chief that she broke her nose when she was pushed down the stairs at AIRS by one of the matrons. However in 1985 Ms. M.J. told her physician that she fractured her nose when she fell off a horse at age 16. Ms. M.J. explained that she had lied to her doctors because she did not want to "speak about the rapes and the molesting that I went through there, because I was so deeply ashamed, I didn't want to talk to anybody about it."

[667] But since Ms. M.J. has never suggested that her nose was broken during a rape or molestation, this explanation is hardly credible. She also failed to mention this "pushing down the stairs" incident when she answered an interrogatory question as to whether anybody else at AIRS besides Mr. Caldwell had physically or sexually assaulted her.

[668] Ms. M.J. testified that she had bled quite profusely from her broken nose and a cut to her eye when pushed down the stairs and that she was treated in the infirmary at AIRS. Yet she failed to mention those injuries and the related medical treatment at the infirmary in her interrogatory answers. It is more likely that Ms. M.J.'s nose was broken in a fall from a horse as she told her doctor in 1985.

[669] Ms. M.J. testified in chief that she was hit on the head with an iron at AIRS. She couldn't recall who did it. However in a note dated October 22, 1959 Ms. M.J.'s physician recorded, "complaining of headaches" and in Ms. M.J.'s words: "struck on head with flat iron by girlfriend two years ago". Ms. M.J. agreed that the doctor's 1959 note suggested that she was struck with the iron at age 19, well after she had left AIRS. When it was suggested to Ms. M.J. that her memory of being struck by the iron was probably better 40 years ago in 1959, Ms. M.J. conceded the following:

[670] Ms. M.J. repeatedly insisted she had never engaged in sexual relations, let alone become pregnant despite many notes suggesting the contrary in her medical records.

[671] Ms. M.J. denied she had a sexual relationship with Walter Blackwater. She testified that she was not involved romantically with men from the time she left Walter Blackwater until she moved from Prince Rupert to Kispiox where she met her second husband James J. She confirmed in cross-examination that she was not involved sexually with any men between the time her relationship with Walter Blackwater ended and the time she married Mr. J. in 1974. The two were married until 1982. Ms. M.J. denied that she had ever been pregnant or that she had ever had a miscarriage or abortion.

[672] However her medical records contradict this testimony. Ms. M.J.'s physician noted on October 22, 1959 "two years married - no children - why?". Ms. M.J. agreed that the man she was married to at that time was Walter Blackwater although she says they were living apart.

[673] Ms. M.J.'s physician noted on November 1, 1960: "had her left fallopian tube removed by Dr. Murray in Kitimat September 11^th .... She thinks the operation was for pregnancy in the tube. Thinks she has lost two or three pregnancies in the early stages - never had a baby - husband used to treat her badly - now they are separated".

[674] In a history taken by Ms. M.J.'s physician on October 28, 1994 it is recorded that: "she apparently was pregnant at the age of 18".

[675] Ms. M.J.'s physician recorded the following on April 20, 1973 as part of her past medical history: "1 abortion 1 ectopic pregnancy."

[676] In a record dated March 21, 1973, one of Ms. M.J.'s physicians has recorded: "has had only 2 pregnancies - 1 an ectopic with surgery and the other aborted. Has worried about inability to have children."

[677] Ms. M.J.'s physician recorded the following on September 10, 1970: "wanted B.C. pills. History of repeated pregnancy failures. Says she aborted a 4-month fetus at home (in PG?) last fall." On September 11, 1970, the physician recorded: "is afraid of becoming pregnant". Ms. M.J. insisted that she was not seeking birth control pills for herself - "it was for the girls". This assertion is inconsistent with the doctor's note of September 11, 1970.

[678] In a consult letter dated December 21, 1978 one of Ms. M.J.'s physicians has recorded: "she apparently did have two miscarriages early in pregnancy, one in 1966 and the other in 1967."

[679] In my view the appropriate inferences that can be drawn from these medical records is that Ms. M.J. was sexually active by age 18 in 1955 shortly after she left AIRS. She was married to and sexually active with Walter Blackwater for a two-year period up to October 1959 and ending with their separation some time before November 1, 1960. As a result of that relationship with Walter Blackwater, Ms. M.J. became pregnant two or three times but never carried the fetus through to term. Ms. M.J. suffered an ectopic pregnancy leading to the removal of her fallopian tube in September, 1960. Before her separation from Walter Blackwater, Ms. M.J. was concerned about her inability to have a baby and asked her physician for an explanation. Ms. M.J. had an abortion in the fall of 1969.

[680] Ms. M.J. also gave conflicting evidence about her serious relationships with various men. In her sworn interrogatory responses, Ms. M.J. stated that she had been in spousal relationships only with Walter Blackwater "for a few months" and James J. for six or seven years in the 1980's. At trial Ms. M.J. testified that she was married to three men: Mr. Blackwater, Mr. J and Mr. Bourelle. Ms. M.J. repeatedly denied that she was in a common-law relationship with Mr. Sherman.

[681] Ms. M.J.'s physician recorded the following on June 10, 1968: "She is an alcoholic, a member of A.A., and, with her husband (the same) on the wagon currently". Ms. M.J. agreed that she went to A.A. with Mr. Sherman but she denied that he was her husband. She said that she did not remember who the husband was she was "on the wagon" with in 1968.

[682] On September 23, 1977, one of Ms. M.J.'s physicians recorded the following social history: "married Walter Blackwater but lived with a Sherman for a period up to '70. Now married to James J.".

[683] In a note one month later on October 29, 1972, written by a different doctor, the following is recorded as Ms. M.J.'s personal history: "was married to Mr. Blackwater and lived with Mr. Sherman. He apparently left her two years ago".

[684] On March 21, 1973 one of Ms. M.J.'s physicians recorded: "C/L marriage broke up 1 1/2 years ago. Now has a loose arrangement with another man."

[685] I conclude that contrary to her trial testimony, she was in a common-law relationship with Mr. Sherman from at least June 1968 to approximately 1970 or 1971. From the references in the medical records relating to Ms. M.J.'s obstetrical history, it is apparent that Ms. M.J.'s relationship with Mr. Sherman was sexual. She reported aborting a fetus in the fall of 1969, was concerned about becoming pregnant and sought birth control pills in September 1970.

[686] Ms. M.J. testified that she could not stand to be touched by a man and that she had no urge to have sexual relations since her time at AIRS. Yet Ms. M.J.'s physician recorded in September, 1977 that Ms. M.J.'s libido was "okay".

[687] Ms. M.J. testified in chief in January 2000 that her sister Edna "took her own life". However, she acknowledged on cross-examination that her sister died from a quick stomach cancer as she had said earlier in this case in August 1998. Ms. M.J.'s attempt to address this contradiction by suggesting a connection between stomach cancer and drinking was just not credible.

[688] In her examination in chief and initially in her cross-examination, Ms. M.J. testified that she had no memories of being in a car accident or being injured in a car accident. Yet Ms. M.J.'s medical records show that Ms. M.J. has been injured in five motor vehicle accidents.

[689] In 1960 she suffered a paralyzed right leg. In February 1977 she sustained significant neck injuries causing years of pain giving rise to a lawsuit. In November another accident left her with no feeling in her leg for a period of time. In November 1981 an accident caused a sore neck, back and knees. In August 1999 she suffered fractured ribs and concussion.

[690] Ms. M.J.'s evidence with respect to the motor vehicle accidents demonstrates the difficulty I have in taking any of her statements at face value. I cannot accept that Ms. M.J. simply forgot about all of these accidents, some of which apparently injured her seriously and one of which occurred only a year before her testimony. Even though her counsel in the case at bar was involved with her in one of the motor vehicle accidents, her evidence in chief left the impression that she had not been involved in a significant motor vehicle accident in her life.

[691] Perhaps the clearest example of Ms. M.J.'s lack of credibility and her dogged determination to associate every negative event in her life with her experiences at AIRS is Ms. M.J.'s insistence that her answer to the following interrogatory question was true:

Q. Do you feel that there are any other events which have occurred in your life, apart from events which you relate to your experiences at the Alberni Indian Residential School which have effected your ability to earn income?

A. No.

Ms. M.J. continued to insist that her answer was true even in the face of contrary evidence.

[692] Ms. M.J. underwent surgery to have her knee joint replaced and was unable to work for a period of time following that surgery. She was involved in at least three motor vehicle accidents, which involved injuries serious enough to "possibly" keep her from working. Ms. M.J. developed arthritis in both knees that flares up so badly that she cannot work.

[693] Ms. M.J. believes she had several heart attacks, two of which she thought were serious and which left her unable to work. She had surgery on a nerve in her right arm, which left her unable to work. Ms. M.J. was forced to resign from her job at Mills Memorial Hospital because she had rheumatic fever. She did concede that she was physically unable to work from 1982 until at least 1987. Ms. M.J. agreed that from September of 1990 onwards she was unable to return to work due to physical problems and that she has been told by her doctors that her bones are deteriorating so she has made no attempts at work since that time.

[694] Notwithstanding this evidence she insisted at trial that she had never lost any time from work over the course of her life for any reason other than her experience at AIRS.

[695] So much of Ms. M.J.'s evidence is demonstrably inaccurate where it overlaps with matters addressed in contemporaneous medical records. It therefore becomes difficult to accept her evidence on other matters, which can no longer be challenged. To put it simply, if Ms. M.J.'s evidence on matters that can be verified through existing circumstantial evidence is found to be so inaccurate, what confidence can the court have that her evidence is reliable on other matters which can no longer be verified circumstantially?

[696] Ms. M.J. acknowledged that she was prepared to lie about her past to a doctor, in circumstances where there was no prospect of financial gain, solely because of her desire to "get back at" her mother. It is also possible that she might equally be prepared to prevaricate about her experiences at AIRS and their impact on her life given the prospect of financial gain in this case.

[697] Although Ms. M.J. described a happy life before AIRS, she did experience hardships. Ms. M.J.'s biological father did not live with Ms. M.J.'s mother. Ms. M.J.'s evidence about her father is unreliable. She described him as being loving in her examination in chief yet told two of the experts retained on her behalf that her father died before she went to AIRS when she was very young. She told Mr. Lawless that she had no recollection of her father.

[698] Ms. M.J. initially testified that she had never been physically disciplined or spanked by her mother prior to AIRS. However, she conceded when a specific example was put to her that on one occasion she was spanked so hard by her mother that she had to live with her grandmother to recover.

[699] Even apart from Ms. M.J.'s allegations of sexual abuse, it is clear from her evidence that her experiences at AIRS were very traumatic. Even before the sexual abuse she alleges, she hated the institution. Ms. M.J. believed she was being put in an orphanage at AIRS because her mother did not want her any more and had just given her away. From her first day, Ms. M.J. was slapped by the matrons and punished frequently by the other staff.

[700] She was given unfamiliar food and she was constantly hungry. She blames her urge to overeat as an adult on the years at AIRS where she was not properly fed. She told Dr. Penfold, "I never wanted to be short of food again."

[701] Ms. M.J. was made to do chores and was punished if she did not do them properly. The punishment included being hit by the school staff. At times Ms. M.J. was locked in a dark room for hours at a time, which terrified her. She was picked on by and had fights with other girls. Ms. M.J. did not do well at her schoolwork. She struggled to learn English and could not concentrate, as she felt distressed and abandoned by her mother.

[702] After six years at AIRS, when she was 12, Ms. M.J. returned one summer to visit her mother at the canneries. This was before she says Mr. Caldwell raped her. Ms. M.J.'s mother and stepfather were drinking then. Ms. M.J. hated her mother that summer: she blamed her for sending her away and she thought her mother did not want her any more. Her dislike for her family was such that at the end of the summer she wanted to return to AIRS rather than stay with them. She did return to AIRS and stayed until she left at age 17 or 18 when she moved back to her mother's home in Kispiox.

[703] When Ms. M.J. moved home after AIRS there were ten people living in the house including Ms. M.J.'s mother. Ms. M.J. shared a room with her sister Edna, whom she then hated. She also disliked her two stepbrothers and her brother Leonard. She hated her mother.

[704] Ms. M.J. hated her family because she believed that her mother sent her and her sister Edna away and her mother seemed to love the other children more. Clearly Ms. M.J. had a difficult time when she returned home for reasons which cannot be attributed to the alleged sexual assaults.

[705] Ms. M.J. explained that she first drank alcohol with her friends, other girls about her age in the community of Kispiox and with her sister Edna. They did not drink much because they could not afford it. They pooled their money to buy beer on weekends.

[706] Although Ms. M.J. testified in chief that she drank to forget what she went through at residential school, her drinking patterns were more related to the company she was keeping. She was initially exposed to alcohol through her association with like-minded peers.

[707] Shortly after she returned to Kispiox she married Walter Blackwater and says she did not drink during the marriage. She was apparently married to Walter Blackwater for a two-year period beginning some time in 1957. On her evidence, Ms. M.J.'s relationship with Walter Blackwater triggered memories of the sexual assaults by Mr. Caldwell. She testified that the smell of stale tobacco and "an old man, sweaty smell" reminded her of what happened with Mr. Caldwell. She says that Walter Blackwater used to try to touch her but she never had sex with him because "he reminded me too much of Mr. Caldwell. He smelled like him, he smelled like an old man".

[708] If Ms. M.J. used alcohol to forget the sexual assaults, one would have expected her to drink during her marriage to Walter Blackwater because of the memories he provoked. Yet she says she did not drink at all during the marriage.

[709] The only evidence provided by Ms. M.J. of her drinking between the end of her marriage to Walter Blackwater and the time of her relationship with Mr. J. is that she had "an occasional drink" while she lived alone in Prince Rupert.

[710] There seems to have been a pattern of alcohol abuse in Ms. M.J.'s family. Her mother abused alcohol, likely starting before Ms. M.J. went to AIRS. Her siblings, Joanne, Patricia, David, Charlotte and Paul all abused alcohol. Ms. M.J. does not know if her sibling Gordon abused alcohol.

[711] It is difficult to find support in Ms. M.J.'s evidence for the proposition that her abuse of alcohol was related to her experiences at AIRS. There were environmental and social factors in the community of Kispiox when Ms. M.J. left AIRS that caused her drinking. There is also evidence of a genetic predisposition to alcohol abuse in her family. If Ms. M.J. drank to forget about AIRS one would expect that she would have abused alcohol during her marriage to Walter Blackwater who reminded her of Caldwell. Yet Ms. M.J. says she did not drink at all during that marriage.

[712] Ms. M.J. seems to have done her heaviest drinking while she was with her second husband James J. There is nothing in her evidence to suggest that her memories of AIRS were especially acute during those years. The circumstances of that relationship may in fact have been a factor in her starting to abuse alcohol.

[713] On her evidence James J. did not want to work. He himself drank "a lot". They lived in a two-bedroom home with his children. The children were difficult: "Brenda liked to run around"; "Elaine was semi-retarded"; "and for Mike ... when he knows I get paid, he wants to beat me up".

[714] One of Ms. M.J.'s physicians noted in 1973:

[715] The physician recorded:

[716] It is perhaps significant that it was at this point in her life while in this difficult domestic situation when Ms. M.J. was assessed medically for depression and suicide gestures. Although Ms. M.J. denied being in a relationship with Mr. J. in 1973, she appears to be wrong. She was married to Mr. J. in 1974. She couldn't identify any other man with whom she was in a domestic relationship prior to that marriage other than Walter Blackwater many years before.

[717] In 1973 Mr. J.'s physician noted:

[718] In 1978, while still married to Mr. J., one of Ms. M.J.'s physicians made the following assessment:

[719] Another medical note from 1978 states:

[720] Ms. M.J. explained that four-year-old referred to was Rosaline, the daughter of Ms. M.J.'s sister, Edna. Ms. M.J. raised Rosaline from birth. After Ms. M.J. was hospitalized with stomach problems in 1978 Rosaline was kept by Ms. M.J.'s mother. Ms. M.J. explained that she "didn't have no trust" for Rosaline being left with Mr. Joseph while Ms. M.J. was in hospital.

[721] Ms. M.J.'s unpleasant marriage to James J. also ended unpleasantly: "he kicked [Ms. M.J.] out" when Ms. M.J. caught him having sex with her friend. Ms. M.J. was driven to excessive drinking during only one of her marriages, to James J. However, the other two marriages were also traumatic.

[722] Ms. M.J. agreed that she was treated badly by Walter Blackwater. She was forced to marry Walter Blackwater; she never loved him. He used to punch her because she would not let him touch her. He was a drunk. She was forced to care for his four children in the very crowded conditions of her mother's home while Walter Blackwater went to work at the canneries. She had no money at the time. He only sent back $10 from the canneries for Ms. M.J. and his four children. When he finally came back from the canneries he came back with another woman. When that happened Walter Blackwater's mother took his four children from Ms. M.J..

[723] Ms. M.J.'s third husband was Mr. Bourelle. It is significant that, by Ms. M.J.'s measure, Mr. Bourelle was "very nice to me" and the "only [nice] man that treated me with respect". Yet Mr. Bourelle almost killed Ms. M.J. by beating and strangling her while he was drunk. This event was so traumatic that she told a doctor in 1994 that she was very frightened; that she heard noises at night; that she could not drive at night because she "hallucinates" and sees other people on the road who frighten her.

[724] Ms. M.J. testified that in addition to her abusive spousal relationships, she was sexually assaulted by other men. She testified that she was drunk at the time and did not remember any of the details. Ms. M.J. told Dr. Penfold that when she was younger and drinking heavily, she teased men sexually but then fought with them. She acknowledged to Dr. Penfold that she could have had sex while drunk. Dr. Penfold formed the impression that it was very likely that Ms. M.J. could have been raped during these incidents.

[725] Ms. M.J. was asked in her examination in chief to describe what she remembered about the nightmares that she had experienced. The nightmares she described bear little resemblance to the sexual assaults she alleges she suffered while alone with Mr. Caldwell.

[726] Ms. M.J. described several suicide attempts during her examination in chief, suggesting that they were related to depression since residential school. However where there is circumstantial evidence relating to the cause of Ms. M.J.'s suicide attempts, it contradicts her attempt to implicate her AIRS experience.

[727] Her medical records from 1966 to 1994 contain a number of references to either suicide attempts or depression or both. However there is no entry that records her as ever telling any treating medical professional that any of her suicide attempts were related to her attendance at AIRS. This contrasts with her evidence at trial in which she blamed every misfortune in her life including her suicide attempts and depression on the sexual assaults she says she suffered at AIRS.

[728] Ms. M.J.'s difficult relationship with her second husband, Mr. J. was likely at the root of her depression and suicide gestures during most of the 1970's. As for her problems prior to the 1970's, there is nothing in the medical records to support her assertion that her experiences at AIRS were in any way causally significant. Ms. M.J.'s suicide gestures appear to have been related to alcohol abuse. After 1973, there are no documented suicide attempts.

[729] There is no evidence that Ms. M.J.'s experiences at AIRS affected her employment. She gave as reasons for leaving various jobs: her employer closing the business, her contracting rheumatic fever or her deciding to move. In addition to rheumatic fever, the medical records show a number of other physical ailments, which interfered with her ability to work. From her Social Services records she was physically disabled from working from 1982 until at least 1987. Ms. M.J. never returned to work after the summer of 1989 because of her physical problems. I can find no reasonable basis for concluding that any of Ms. M.J.'s disabling physical conditions were causally related to her experiences at AIRS.

[730] Dr. Penfold gave expert evidence on behalf of Ms. M.J.; Dr. Eaves testified for the defence. Although Dr. Eaves relied on the facts Ms. M.J. provided and although I have found that I cannot conclude that the acts of sexual assault she described in fact occurred, his evidence is nonetheless helpful.

[731] In cross-examination, Dr. Eaves agreed that if Mr. Caldwell did not rape Ms. M.J. at the residential school, then her post-traumatic stress disorder, her alcohol abuse and her sexual difficulties would have to be ascribed to one or more other causes. Dr. Eaves agreed that women who are victims of domestic violence can develop post-traumatic stress disorder from the physical assaults that are inflicted on them. He went on to note:

[732] Dr. Eaves agreed that the lack of ability to form a stable, intimate relationship is likely multi-factorial in cause. In Ms. M.J.'s case, the causative factors could include deprivation experiences in childhood, alcohol abuse, and any difficult or seriously unpleasant experience in her various marriages. Dr. Eaves stated that the physical assaults which Ms. M.J. experienced in her various relationships, "could cause this issue of distrust of men and fear of men and so forth".

[733] The evidence supports my conclusion that Ms. M.J. has failed to prove that the sexual assaults in fact occurred during the damages phase of the trial. There are a number of convincing explanations from her life experience after leaving AIRS that could serve to explain the difficulties she has had to deal with during her life.

[734] Dr. Penfold's opinions were based on factual assumptions concerning the nature and frequency of the assaults suffered by Ms. M.J., which were not proved. Dr. Penfold also demonstrated a lack of objectivity in assessing Ms. M.J.'s description of her life events.

[735] It is Ms. M.J.'s view that all of her unpleasant life experiences can in some way be traced back to what she went through at AIRS. Dr. Penfold's uncritical acceptance of those life experiences led her to virtually the same conclusion. Dr. Penfold explained that her practice in an assessment such as this is to allow the plaintiff to determine what is to be discussed. She said on cross-examination:

Q. Did you ask her if her mother ever punished her?

A. I asked her in general what it was like at the time how her mother treated her. She didn't mention any punishment.

Q. So you didn't specifically ask her?

A. I didn't specifically ask her.

Q. Why not?

A. Well, I think that I like to as I said in that article that you mentioned I like to give the person the chance to just tell me their story, their narrative.

[736] Dr. Penfold did not try to determine the extent to which Ms. M.J. was physically abused during her relationships. By not doing this she did not obtain an accurate picture of Ms. M.J.'s life for the purposes of her opinion.

[737] In my view Dr. Penfold was being less than objective when she expressed the conclusion in her report that Ms. M.J. "appears to be of at least average intelligence". This was based on the fact that:

[738] However the "written stuff" produced by Ms. M.J. was her handwritten list of the jobs she has held. It is difficult to see how a conclusion about an individual's intelligence can be based on the production of such a simple handwritten list. Mr. Lawless' tests of Ms. M.J.'s intellectual functioning showed that her intellectual abilities are at the 11th percentile, which is described as "definitely below average in intellectual capacity".

[739] I regret to say that I found Dr. Penfold's evidence particularly unhelpful. In her uncritical acceptance of what she was told and in her subsequent analysis she did not display the objectivity and impartiality on which the court relies when receiving expert evidence. Her evidence appeared to be designed to support the plaintiff's contention that every failing in her life was caused or contributed to by the sexual abuse she suffered at AIRS. For that reason I place no weight on either her opinions expressed or on her trial testimony.

[740] I have concluded that I cannot rely on Ms. M.J.'s evidence at any stage in these proceedings. She has not proven to the requisite standard that Mr. Caldwell sexually abused her. In the damages phase of this case, Ms. M.J. has not proven that her psychological problems were caused by sexual assaults at AIRS as opposed to the many other traumatic experiences in her life.

[741] Accordingly her claim will be dismissed and no award of damages made.

[742] Mr. D.S.'s parents died in separate boating accidents, when he was several months old. His grandparents, the Doolans, raised him in Kincolith. Mr. D.S. did not know he had four older siblings until he met them at AIRS.

[743] Mr. D.S. said during cross-examination that his grandfather was rigid and controlling. He felt that he did not get proper parental guidance from his grandparents and he did not bond with them before he went to AIRS.

[744] Mr. D.S. started Grade 1 at AIRS when he was eight years of age. He did not know why he started school so late. He struggled as a student. A counselling report completed in 1968 noted, "one of his serious disabilities is a lack of memory. The memory span is extremely short in many areas". Mr. D.S. conceded that he had problems with his memory throughout his years at school.

[745] He returned home to Kincolith to live with his grandparents during summer breaks. While home one summer when he was 13, he first tried alcohol. Mr. D.S. agreed that it was common for the friends that he socialized with to drink alcohol at that time. Many of the friends he was with that summer in Kincolith were consuming both drugs and alcohol. In his evidence Mr. D.S. did not connect his use of alcohol and the sexual assaults by Plint.

[746] Mr. D.S. left AIRS in 1969 and began boarding with H.B.. At the time it was common among his friends to drink alcohol. Mr. D.S. began drinking alcohol on a somewhat regular basis. As he explained, two or four of his group of friends would chip in and purchase beer. Mr. D.S. does not recall ever drinking by himself then.

[747] Mr. D.S. says that he was dependent on alcohol between 1977 to 1985. He also used of marijuana and cocaine before 1985.

[748] Mr. D.S. worked at a bakery after completing high school. He left to pursue a higher paying job at a restaurant. He then moved to a job at Al's Stucco. Because the work depended on the weather, he moved to Karl's Masonry. From 1978 to 1991, he worked for MacMillan Bloedel

[749] Mr. D.S. suffers from ankylosing spondylitis. By 1991 his condition had deteriorated so that he was unable to lift, flex, carry weights, walk on uneven ground, or climb from log to log. In 1991 he was told that he would be permanently disabled. This depressed him since he had had a very good job with MacMillan Bloedel.

[750] Mr. D.S. says that his back pain arose from, "toxins in my muscles from the verbal and physical abuse". Because of that belief, he blamed his back pain on his experiences at the residential school. He did not refer to any sexual abuse at AIRS as a cause.

[751] In 1991 Mr. D.S. went on short-term and then long-term disability which until April 1, 1993 when his employment at MacMillan Bloedel terminated. In 1992, through the efforts of an official with his union, Mr. D.S. began attending the Adult Basic Education Program at Malaspina College. He attended Malaspina for most of 1992 and then for three more complete school years until June 1995.

[752] He did not complete any of his courses because he found it very difficult to do the math and English required, even with the help of a tutor. Mr. D.S. described his inability to complete his courses as a painful loss and personal defeat.

[753] Mr. D.S. says he cannot remember if he was looking for work between 1992 and 1995. He first prepared a resume in June 1995. Shortly after that, B.C. Ferries hired him where he continues to work. Mr. D.S. earns between $18 to $23 per hour working at B.C. Ferries in the summers. As his seniority increases he hopes to secure a full-time position.

[754] Mr. D.S. is single and has never been involved in a long-term relationship. Mr. D.S. testified that the reason for his single status is that, "I always felt sort of insecure because I was not given the proper parental guidance". Mr. D.S. agreed that he did not get the proper parental guidance from his grandparents because, "the bonding is really what was not there". Mr. D.S. testified further that the reason his short-term relationships ended was, "insecurity because the residential school did not give us parental guidance". He did not attribute the sexual abuse at AIRS as a factor.

[755] Mr. Colby gave expert opinion evidence for Mr. D.S.. The facts he relied on for his opinion differed from the trial evidence.

[756] Mr. Colby's history omitted the fact that Mr. D.S.'s biological parents were alcoholics. He did not ask him about the drinking habits of his grandparents who raised him. Mr. Colby did not understand the extent to which Mr. D.S. was exposed to prior to AIRS.

[757] During cross-examination, he addressed the prospect that Mr. D.S. would have been an alcoholic in any event:

Q. Well, we talked earlier about the genetic aspect and the environmental aspect. If his biological parents were alcoholics, those who raise him are alcoholics, those who he associates with are alcoholics, there is a pretty reasonable chance he's going to be an alcoholic himself isn't there?

A. There is a chance that he will be but it is not inevitable that a person whose parents were alcoholics will become an alcoholic.

Q. But in his case with this background it is more likely than not he would become an alcoholic?

A. There is a high risk.

Q. More likely than not?

A. Then we get down to the individual case and I don't think I am willing to go to the individual case. High probability.

[758] Mr. Colby appears to have misunderstood Mr. D.S.'s relationship with his grandparents and his personality prior to AIRS. Mr. Colby believed that Mr. D.S. was positive about his grandfather. During the trial, Mr. Colby conceded that the description he obtained from Mr. D.S. concerning this relationship was just the opposite of what Mr. D.S. described to the court when he testified in January, 2000: that his grandfather was a rigid and controlling person who was distant, that he felt he did not get proper parental guidance from his grandparents, that he did not bond with them well before AIRS, and that he was uncomfortable living with them.

[759] Mr. D.S. told Mr. Colby that he was outgoing and playful before he went to AIRS. Mr. Colby conceded that he would have to reconsider the conclusions in his report if in fact Mr. D.S. were shy, bashful and passive prior to AIRS, as he in fact testified.

[760] Mr. Colby agreed that it was Mr. D.S.'s personal view that his sense of depression had nothing to do with sexual or physical assaults; it was caused by Mr. D.S.'s dissociation from his culture.

[761] Mr. Colby also says that, if he were presented with Mr. D.S.'s trial evidence about his being forced to leave his job with MacMillan Bloedel, he would agree that the loss of that job had a profoundly negative effect on Mr. D.S.. He said in his cross-examination:

Q. If I were to suggest to you that Mr. D.S. has testified that the onset of his sleeping problems coincided with his termination by MacMillan Bloedel, would that suggest to you a relationship one with the other?

A. Yes.

Q. And if I were to add to that that he gave evidence that he had haunting feelings at night involving vulnerability which began when he left MacMillan Bloedel, that would be significant to you?

A. If his statement is that that never occurred prior to that, certainly.

Q. Yes. And if he told you that he began feeling a fear of being around other people after he left his job at MacMillan Bloedel that too would be significant?

A. Yes.

Q. And the significance of these things would be that the loss of his job at MacMillan Bloedel has had a profound effect upon him?

A. Correct.

Q. And a negative effect?

A. Yes.

[762] He also testified:

Q. Well, Mr. Colby, Mr. D.S. lost his job in April of 1993 once and for all with MacMillan Bloedel, the only job he'd ever really had. The job that he described as a very good job. Surely that would a significant stressor for him immediately before August of 1993 when he's having sleeping and eating difficulties. Isn't it reasonable to conclude that the one caused the other?

A. It would be reasonable to conclude that that was a major stressor in his life, yes.

Q. Okay, which in all likelihood resulted in his sleeping and eating difficulties?

A. At that time, that would affect his sleeping and eating I'm sure.

[763] Mr. Colby might have misunderstood the extent of the sexual contact between Plint and Mr. D.S. when he wrote his report. He believed that during each of the two incidents of sexual assault, Plint placed his hands on Mr. D.S.'s genitals and "forcibly" took Mr. D.S.'s hand and placed it on his own genitals. Mr. Colby conceded on reviewing his notes that Mr. D.S. had not suggested to him that Plint had ever placed his hands on Mr. D.S.'s genitals.

[764] Mr. Colby's description that Plint "forcibly took Mr. D.S.'s hand and placed it on his own genitals", is quite different from what Mr. D.S. says transpired - Plint placing Mr. D.S.'s hand on the outside of Plint's pants in Plint's "penis area".

[765] I do not accept Mr. Colby's opinion that Mr. D.S.'s psychological problems can be related to what were relatively mild incidents of sexual assault.

[766] Mr. D.S. is entitled to damages for the sexual assaults I have concluded did occur. These involved two instances where Plint took his hand and placed it on Plint's genital area while both were fully clothed. There were additional similar assaults by Plint. However Mr. D.S. has not proved that any of the psychological difficulties he has experienced in his life after leaving AIRS were likely caused by the incidents he described.

[767] For these assaults I would award non-pecuniary damages of $10,000. He will be entitled to an award of punitive damages against Plint alone of $2,000. Mr. D.S. has not proven any income loss. He has not made out a claim entitling him to counselling costs.

[768] The W. family lived in Kincolith and Prince Rupert in the winter but spent the fishing season from May to October at the canneries. Mr. M.W.(1)'s father stayed at the canneries beyond the fishing season. From March to October each year, Mr. M.W.(1)'s father was rarely home and Mr. M.W.(1) did not see much of him.

[769] He testified that his father was dependent on alcohol.

[770] In his direct examination, Mr. M.W.(1) said that his mother spanked him if he did not listen. She used her hands and would "the odd time use a [piece of] kindling".

[771] In one of his counselling sessions at the Victoria Life Enrichment Society (VLES), Mr. M.W.(1) wrote of being "beaten constantly by my mom, thus I really hated her and other women".

[772] He also wrote while at the VLES that: "mom was beating me so much for wetting my bed". He told his psychiatrist, Dr. Brasfield, that he was, "clubbed with sticks by mother. Seemed like a scapegoat". He further explained that reference by saying:

[773] Mr. M.W.(1) agreed that he acted out and misbehaved before he went to AIRS. He agreed that there were times when he would not listen to his parents or others who were looking after him and as a result, he got into trouble. This occurred more frequently to him than his brothers. Mr. M.W.(1)'s behaviour at the cannery was so bad that the "boss" there spoke to Mr. M.W.(1)'s mother and told her that he was totally out of hand.

[774] Prior to AIRS his mother took him to the Mill Bay Indian Hospital to see if they could find the cause of his misbehaviour. He was hospitalized for a few days. While there his behaviour was such that he was for a time strapped to his bed. He also managed to get into a fight with another boy.

[775] One of Mr. M.W.(1)'s persistent problems was his quick temper leading to violent or at least excessive reactions. This personality trait had already developed before he went to AIRS. It was severe enough that as a child that he was hospitalized by his parents for an assessment at a time when parents were less likely to seek professional intervention in matters of child rearing and development.

[776] Mr. M.W.(1)'s early behavioural problems brought him into frequent violent conflict with his mother. This perhaps affected his perception of women in general. As noted above, Mr. M.W.(1) himself wrote that as a result of the constant beatings by his mother, he "really hated her and other women". This animosity towards women generally, which may in part explain Mr. M.W.(1)'s self-described "womanizing" as an adult, developed prior to AIRS and for reasons unassociated with Mr. M.W.(1)'s sexual abuse by Plint.

[777] Mr. M.W.(1) experienced a number of traumatic events as a child. He nearly drowned himself at age 6. In his teens Mr. M.W.(1) watched his cousin drown after their raft broke up. The family's apartment was destroyed in a fire.

[778] Mr. M.W.(1) spent part of every year living at the canneries before going to AIRS. His residence was infested with cockroaches. These caused Mr. M.W.(1) a great deal of fear. He had nightmares about them. He was afraid to get up and use the bathroom at night. This started Mr. M.W.(1)'s problem with bedwetting, which led to more physical discipline by his mother. Mr. M.W.(1)'s enuresis was a significant enough that it was specifically raised with the physicians when he went to the Mills Bay Indian Hospital for assessment.

[779] In February 1998 Mr. M.W.(1) testified that his problems with bed-wetting began after he went to AIRS. I conclude that it likely started while he was at the cannery with his family before he went to AIRS.

[780] Mr. M.W.(1) was at AIRS from 1964 to 1967. He attended Grade 2 classes on site during his first year. During his second year, he was bussed to Wood Elementary School in Port Alberni. There, he completed a second year of Grade 2 and also Grade 3.

[781] In his direct examination Mr. M.W.(1) says he was disciplined and strapped while attending classes at AIRS for the following: using his Native language; sleeping in class; not paying attention; not talking to other kids; wanting to go to the washroom.

[782] Mr. M.W.(1) testified that quite apart from the sexual assaults, his life at AIRS was an unpleasant experience. It was a violent place and he fought with other boys almost every day. He was forced to run the "gauntlet" and endure beatings from the other boys two or three times a week. The gauntlet was so traumatizing that there were times when Mr. M.W.(1) felt that he had passed out for a moment or two during the ordeal.

[783] At Wood Elementary School he experienced open racism. This was his first significant exposure to non-Aboriginal people. Mr. M.W.(1) fought with the non-Aboriginal children because they treated him differently and made comments about his race. He says that discrimination has continued throughout his adult life because of his race.

[784] On many occasions in his adult life Mr. M.W.(1) got into disputes at work because of what he perceived to be racist treatment. His experience with racism appears to have started at public school in Port Alberni rather than with the sexual assaults committed at AIRS by Plint.

[785] Mr. M.W.(1) left AIRS when he was eleven and returned to Kincolith in June 1967. There he attended the Indian Day School and completed Grades 5, 6 and 7 in two years. He skipped a year because he was doing so well in school. Mr. M.W.(1) says that his marks at the Kincolith Day School greatly improved due to his increased fluency in English.

[786] By the time he returned both of his parents were dependent upon alcohol. Mr. M.W.(1) began drinking alcohol when he was 12. His drinking escalated. He obtained his alcohol initially from his parents; he and his friends would wait for his parents to pass out from their own drinking and then Mr. M.W.(1) would take their alcohol. At the time, Mr. M.W.(1)'s peers, his cousins and the other boys he socialized with in Kincolith also drank alcohol.

[787] The start of Mr. M.W.(1)'s alcohol use does not appear to be linked to his experiences at AIRS or, more specifically, to the sexual abuse he suffered there. It appears that his drinking began as a social activity he enjoyed with his friends and relatives in the community after his return to Kincolith.

[788] Mr. M.W.(1) left Kincolith in September, 1970 to continue his education in Grade 8 at Port Alberni. There Mr. M.W.(1) and his brother M.W.(3) boarded with the Leask family. They had a son in the same grade as Mr. M.W.(1). He fought with the Leask boy once or twice a month. He also fought with his brother M.W.(3). Both of the Leask parents drank alcohol. At times, Mr. Leask would return from work inebriated. Mr. M.W.(1) testified that he drank once or twice a month while at the Leach home.

[789] Mr. M.W.(1) also fought with others. He explained:

[790] Mr. M.W.(1) described Port Alberni at the time as having "quite a bit of rednecks around". These fights were not limited to occasions when Mr. M.W.(1) had been drinking. He also got into fights with non-Native students two to three times a week at the school he was attending, Mount Klitsa.

[791] Mr. M.W.(1) completed Grade 8 at Mount Klitsa. He did not consider himself to be a good student because he was moved during the year from an academic to a general program. In grade 9, Mr. M.W.(1) attended Newton Junior Secondary School. He and his brother M.W.(3) stayed with a family in Surrey.

[792] Next Mr. M.W.(1) boarded with the Campbell family in Vancouver while he attended Sir Charles Tupper High School. He did not like staying with the Campbells and was only there for a short period. He described the Campbells as "disciplinarian type of individuals, heavy handed".

[793] Mr. M.W.(1) left the Campbell home halfway through Grade 10 to move to the Hewitt family. He stayed with them to the end of his time in grade 11. Mr. M.W.(1) attended John Oliver High School while he lived with the Hewitts. He says that he didn't fight at John Oliver. He says that he felt more comfortable with the racial mix at that school, including the fact that there were other Natives there.

[794] This supports a conclusion that much of Mr. M.W.(1)'s tendency to resort to violence was related to his perception that he was the subject of racial discrimination and not to the sexual assaults at AIRS.

[795] According to Mr. M.W.(1)'s school transcripts, he missed over 40 days of school in Grade 11. He attributed his absenteeism to the fact that he was more involved with drinking at that time including drinking "quite a bit" with Mr. and Mrs. Hewitt.

[796] He also described going every weekend to the Nelson Place Hotel and a "booze can" on Pender Street where women in their late 20's from the British Properties would pay Mr. M.W.(1) $300 to spend time with and have sex with them. He says that he had marijuana parties and drank all types of alcohol in association with these activities. Mr. M.W.(1) agreed that when he was 16 and 17 he spent most of his time drinking, smoking pot and partying with his friends.

[797] The logical inference to be drawn is that Mr. M.W.(1)'s use of alcohol, which he obviously enjoyed, was entirely related to the social circle he was keeping at the time. It is difficult on the evidence to see any association with his experiences at AIRS.

[798] Mr. M.W.(1) testified that he finished Grade 11 at John Oliver and then left Vancouver to take a job with Skeena Forestry Mill in Terrace in 1974.

[799] During the summers between 1970 and 1974, Mr. M.W.(1) returned to Kincolith. His parents were still drinking alcohol. Mr. M.W.(1) continued to drink during those summers with his cousins and friends in the village. He did not return to complete Grade 12 because he met a married woman in the summer following Grade 11 and he decided to pursue that relationship.

[800] Mr. M.W.(1) worked at the Skeena Forestry Mill from June to early November 1974. He testified that he left that job because he got involved with a woman named Sharon Martin who also drank and his drinking escalated even further.

[801] After leaving his job at the Skeena Forestry Mill, Mr. M.W.(1) moved to Prince Rupert to be with Ms. Martin. He testified that at this point in his life he frequently got into fights in Prince Rupert.

[802] While Mr. M.W.(1) was living in Prince Rupert, he met Isabel Stevens in the latter part of 1975. They married in July 1976. Ms. Stevens had a son, M.A.W., in October 1976.

[803] Mr. M.W.(1)'s next job was working as a fish packer from June to October of 1976. He was fired from that job near the end of the season because of drinking. From March to September 1977, Mr. M.W.(1) worked in logging. He obtained work in October 1977 as a labourer for the Kincolith Band Council. He worked there until October 1978. Although he was fired from that job for drinking he got his next job within two or three weeks with the Kincolith Band Council's Salmon Enhancement Program. Mr. M.W.(1) was fired from that job after he and some of his co-workers were drinking. He went from the Salmon Enhancement Program to a position as Harbour Attendant with the Department of Fisheries and Oceans in Prince Rupert.

[804] Until 1980, Mr. M.W.(1) was successful in securing employment when he looked for it. To the extent that he lost any of those jobs for cause, it would appear that the problem was his drinking. This drinking appears to be related to his chosen social circle rather than to any consequence of his having being sexually abused at AIRS.

[805] In October 1982, Mr. M.W.(1) was dismissed from his position as an Assistant Harbour Manager with the Department of Fisheries and Oceans because he was found to be under the influence of alcohol at work. He successfully grieved his dismissal. In February 1983, he accepted a lateral transfer to Assistant Harbour Manager in Steveston. In July of 1987 he was promoted to Harbour Manager in Steveston.

[806] Mr. M.W.(1) explained that at the time of his October 1982 dismissal he was drinking approximately four days per week. His wife was also drinking. Mr. M.W.(1) separated from his wife Isabel in December 1984. The dissolution of Mr. M.W.(1)'s marriage does not appear to have been related to the consequences of his attendance at AIRS.

[807] In December 1984 Mr. M.W.(1)'s employer told him he was unreliable because of his drinking. He was told to get treatment or lose his job. In January 1985 Mr. M.W.(1) contacted an employee assistance program with the Richmond Drug and Alcohol Abuse Team. From there he was referred to the Victoria Life Enhancement Society (VLES) in Victoria. He began a residential program at the VLES in February 1985.

[808] In the VLES records Mr. M.W.(1) did not ascribe any of his problems at work or in his personal life to anything related to his attendance at AIRS.

[809] Mr. M.W.(1) stopped drinking in 1985 after the program at VLES. When he finished he returned to work with the Department of Fisheries and Oceans in Steveston. In 1987 Mr. M.W.(1) had a brief relationship with Ms. Erica Martin. She became pregnant and had a son, D., born January 9, 1988. Mr. M.W.(1) did not see Ms. Martin or his son after he was born.

[810] In February 1988 Mr. M.W.(1) applied for disability insurance claiming that he was unable to perform his job due to stress. He described his employment situation as follows:

[811] Although Mr. M.W.(1)'s application for disability insurance was denied he remained on sick leave until his entitlement ran out in August 1988. He relied on social assistance until he returned to work at the Department of Fisheries and Oceans on September 3, 1988. While off work in 1988, Mr. M.W.(1) filed an appeal with the Workers' Compensation Board in connection with the Board's decision not to grant him coverage for stress leave. In his Notice of Appeal, Mr. M.W.(1) stated:

[812] I conclude that Mr. M.W.(1) has not proved that he lost any income during this period as a consequence of his experiences at AIRS. On the evidence, Mr. M.W.(1)'s problems at work were related to personality disputes with his co-workers and supervisors and not to having been sexually assaulted by Plint.

[813] Mr. M.W.(1) attended further counselling at the VLES five weeks starting in January 1990. By that time he had an awareness of his AIRS experience. In counselling sessions and in his own notes at VLES he referred to issues relating to his treatment at AIRS including the fact that he had been sexually abused.

[814] Despite that, he did not ascribe any of his ongoing problems to his experiences at AIRS. Mr. M.W.(1) wrote the following notes while at VLES in January, 1990:

[815] Mr. M.W.(1) wrote further:

[816] Mr. M.W.(1) went on to write that what he wished to change over the next 12 months of his life was:

[817] And finally, he wrote:

[818] Mr. M.W.(1) completed another form at VLES in which he ranked his performance as a human being as "fair". The reasons he gave were as follows:

[819] He completed another form at VLES in which he rated his sense of purpose and clear direction over the past 12 months as being "good to fair". In support of his rating he said:

[820] On the same form, Mr. M.W.(1) indicates that looking ahead to the next 12 months one of the changes he would like to make was:

[821] These comments that Mr. M.W.(1) wrote in January 1990 are significant in trying to identify the negative influences on his life. Despite his acknowledged awareness of his residential school issues, Mr. M.W.(1) did not link any of his problems at work or home to any issue relating to AIRS. While he made specific reference to being sexually abused at AIRS, he did not relate any of his problems to that sexual abuse.

[822] In fact Mr. M.W.(1) was troubled by a number of issues relating to the dynamics of his work place and their spillover to his home and family life. In the face of these clear statements he has made, it is difficult to accept Mr. M.W.(1)'s more recently formed view, as expressed to the Court and to various expert witnesses, that the sexual assaults he suffered during his three years at AIRS are at the root of all of his life's problems.

[823] Mr. M.W.(1) left his employment with the Department of Fisheries and Oceans in November of 1990 as a result of being laid off because of privatization of the Harbour Services. He received a six month severance payment.

[824] True to the goal he expressed at the VLES, Mr. M.W.(1) attended a counselling training program from February to December 1991. Mr. M.W.(1) started work with the Tsawwassen First Nation in May 1992.

[825] Mr. M.W.(1) felt that his employer harassed him while he worked with the Tsawwassen First Nation. He filed a complaint with the Canadian Human Rights Commission. He resigned his position in March 1996.

[826] The Native Court Workers Association in September 1996 hired Mr. M.W.(1). He transferred to a position as a drug and alcohol abuse counsellor with the Native Court Workers Association in February 1997. Mr. M.W.(1) filed many grievances relating to his job as a drug abuse counsellor and his relationship with his supervisor. In his grievances, he alleged that his supervisor used harassment, intimidation, coercion and discrimination against him. He sought compensation for the pain and suffering that he had been through as a result of what he perceived to be mistreatment by his supervisor.

[827] He left the Native Court Workers Association in May 1999 and has since then been employed as a counsellor with an organization called "Healing our Spirit".

[828] During his examination in chief, Mr. M.W.(1) testified that he stopped driving his car because he had become too violent and had experienced several incidents of "road rage". However in October 1998 the physician who was treating Mr. M.W.(1) for sleep apnea recorded that, "He tends to avoid driving because he sometimes feels sleepy doing so".

[829] During his examination in chief, Mr. M.W.(1) spoke only of nightmares of Plint raping him. However on cross-examination he conceded that he has also been bothered in his lifetime by nightmares of cockroaches, of his father "going away", about devil worship and witchcraft. Mr. M.W.(1)'s credibility was further eroded by his attempt to suggest that there was some connection between nightmares of devil worship or witchcraft and his experiences at AIRS. However, in making that assertion, Mr. M.W.(1) also summed up his belief that all of his life's troubles are the result of his experiences at AIRS:

[830] Mr. Colby and Mr. Nordin gave expert evidence for Mr. M.W.(1). Mr. Colby's opinions are weakened by his failure to gather information from Mr. M.W.(1) concerning other traumatic events in his life. These additional facts might well have undermined Mr. Colby's opinion that Mr. M.W.(1)'s experiences at AIRS were the cause of all of his psychological problems. As noted above, Mr. Colby conceded that he did not try to distract Mr. M.W.(1) from his focus on the sexual assaults:

[831] Although Mr. M.W.(1) told him that his mother was the disciplinarian, Mr. Colby did not inquire about the nature of the discipline that was meted out. Because he did not ask and because he did not have the benefit of previous relevant clinical and counselling records, Mr. Colby did not know that Mr. M.W.(1) was hit by a stick as a young child.

[832] Mr. Colby testified:

A. That could have been a traumatic event for him and certainly it's different from what he told me.

Q. What do you mean could have been a traumatic event, beaten and clubbed by your mother?

A. I don't know what his responses were to that because we never addressed that issue.

Q. Because you never found out about it?

A. That's correct.

[833] Mr. Colby did not know that Mr. M.W.(1) was spanked for bedwetting before he went to AIRS. He conceded that such discipline might have an impact on a young child as follows:

[834] Mr. Colby did not know that Mr. M.W.(1) had behavioural problems before AIRS; that he was a troublemaker and prone to act out. He had no information about Mr. M.W.(1) being admitted to hospital and being strapped to the bed because he would not behave. Mr. Colby conceded that such experiences "could" have some long-term impact on Mr. M.W.(1).

[835] Mr. Colby did not know that Mr. M.W.(1) was involved in altercations with other students while at AIRS. He did not know that Mr. M.W.(1) found the gauntlet experience to be so traumatising that he would pass out while running it. Mr. Colby did concede that that would be a significantly traumatic event if it had occurred.

[836] Mr. Colby did not see any of the records from the VLES. Therefore, he was not aware of the numerous references in those records to what Mr. M.W.(1) believed at the time to have been the cause of his psychological troubles.

[837] What Mr. Colby did was to listen to Mr. M.W.(1) describe how all of the problems in his life could properly be attributable to his experiences at AIRS. He then recorded that fact in a written opinion. Mr. Colby said:

A. I believe that my conclusions are that the events at the Alberni school was the single most significant event. That doesn't mean there weren't other events, and all these things do play in influences upon him.

Q. Mr. Colby, when you say it is the single most important event, how can you say that when you don't know about all of these others?

A. That is based in large part on his self-report of the things that traumatised him.

[838] It is difficult to understand Mr. Colby's willingness to simply record Mr. M.W.(1)'s views about the cause of his psychological problems given the results of his testing. Mr. Colby conceded that the most reasonable conclusion to be drawn from the psychometric testing was that Mr. M.W.(1) was exaggerating. His scores on those tests were so extreme that they gave rise to two possibilities, according to Mr. Colby. One possibility was that Mr. M.W.(1) was so dysfunctional that he could not function on a day-to-day basis. The second possibility was that Mr. M.W.(1) was attempting to skew the test results to support his own case.

[839] It is difficult to reconcile the former explanation with the fact that Mr. M.W.(1) has managed through almost his entire working life to hold down a job and to be a productive member of society. While he has had problems with interpersonal relationships with his employers, he does not appear to be so dysfunctional that he cannot function on a day-to-day basis.

[840] Mr. Colby also advanced some propositions which are not only counter-intuitive but are inconsistent with the opinions expressed by the other experts. He tried to suggest that it did not matter whether Mr. M.W.(1) was at AIRS for six years or three years. He stated that the longevity of the abuse was irrelevant. He also suggested that the frequency of the sexual abuse was something of limited significance.

[841] Finally, it should be noted that after his cross- examination, Mr. Colby was prepared to modify his view:

[842] Mr. Nordin's report relies on Dr. Colby's opinion. As such it is of assistance only with respect to the test results. On a non-verbal test of his intellectual functioning, Mr. M.W.(1)'s score placed him in the 25th percentile. On a general intelligence test, Mr. M.W.(1) obtained a full scale I.Q. score of 84, which placed him in the lower average range. From this I conclude that Mr. M.W.(1) has done relatively well holding the jobs he has had throughout his working life given his tested intellectual abilities.

[843] Mr. M.W.(1) has not alleged in the pleadings that Mr. Plint subjected him to anal rape, although he did give that evidence. He was forced to engage in oral sex with Mr. Plint on the two occasions he described. I have also concluded that these acts occurred on additional occasions, although I can make no finding as to frequency.

[844] Mr. M.W.(1)'s family background was problematic. Before he went to AIRS Mr. M.W.(1) was troubled by enuresis and nightmares and had serious behavioural problems for which he was hospitalized. Mr. M.W.(1) also endured the early childhood traumas of having the family apartment burn down and of nearly drowning at age 6.

[845] In my view Mr. M.W.(1) early childhood behavioural problems are significant in assessing whether his later psychological problems would have occurred in any event had he not been sexually abused while at AIRS. The weight of the evidence supports a conclusion that Mr. M.W.(1)'s difficulty with interpersonal relationships at work and his quick anger are a natural evolution of the behavioural problems, which were present prior to his attendance at AIRS.

[846] Much of Mr. M.W.(1)'s anger and tendency to resort to violence is based on his impression that he is being singled out because of his race. This seems to be unrelated to the sexual assaults.

[847] While he was at AIRS, Mr. M.W.(1) endured traumatic events quite apart from the sexual abuse. Particularly traumatic seems to have been the gauntlet, which Mr. M.W.(1) was forced to run two to three times a week.

[848] He began drinking alcohol when he returned to live with his family in Kincolith. He continued to drink alcohol while he was boarding out with other families in the lower mainland during his high school years. This was a social activity: he spoke of "teens being teens" and drinking beer. Describing his lifestyle at high school he said:

[849] Many of the problems that have plagued Mr. M.W.(1) throughout his adult life can be attributed to his abuse of alcohol; he lost several jobs because of his drinking.

[850] Mr. M.W.(1) has described himself as a compulsive womaniser. He did not associate this behaviour with the fact that Plint had sexually abused him. Rather, the only evidence which Mr. M.W.(1) provided is that he "hated" women as a result of the fact that he was constantly beaten as a child by his mother.

[851] Over the last twenty years, Mr. M.W.(1) has been relatively steadily employed in jobs paying reasonable wages: first with the Department of Fisheries and Oceans and then with the Native Courtworkers Association before his current job as a counsellor. In those jobs, Mr. M.W.(1) has had obvious problems getting along with his supervisors, leading to a host of grievances.

[852] Mr. M.W.(1) contends that all of those problems can be attributed to the sexual assaults he suffered at AIRS. However that is markedly different from what Mr. M.W.(1) expressed when he was going through counselling to address his psychological problems and when there was no prospect of any financial gain.

[853] The VLES records from January of 1990 are instructive. At that time, Mr. M.W.(1) had acknowledged an awareness of residential school issues and specifically of the fact that he had been abused at AIRS. Nevertheless, his own words as recorded in the VLES records show clearly that he believed that he was being troubled by a host of issues relating to the dynamics at the workplace and the spill-over of those work place issues to his home and family life. Those are very clear statements made by Mr. M.W.(1) himself. For that reason I prefer those statements to Mr. M.W.(1)'s more recently formed view, as expressed both to the Court and to the various expert witnesses, that the sexual assaults he suffered at AIRS have caused his life's problems.

[854] While I cannot accept that all of Mr. M.W.(1)'s life difficulties were caused by his attendance at AIRS, it is nonetheless the fact that as a vulnerable child he was forced by Plint to engage in oral sex and he was anally raped on likely more than the two occasions he described. The severity of that abuse and the circumstances in which it occurred are to be taken into account in assessing an appropriate damages award.

[855] I conclude that an appropriate aggregate award for non-pecuniary and aggravated damages in Mr. M.W.(1)'s case would be $125,000.00. I would also award punitive damages of $20,000 against Plint.

[856] Mr. M.W.(1) has not proven either a past or future income loss. When he has missed work in the past, it would appear to be attributable to his drinking problems or to his interpersonal difficulties with his supervisors. For the reasons stated previously, those are matters which cannot be causally attributed to the sexual assaults.

[857] I would award Mr. M.W.(1) $5,000 for future counselling.

[858] As Mr. M.W.(2) did not testify in the first liability phase at this trial, his evidence as to the specifics of the assaults by Plint must be considered.

[859] Mr. M.W.(2) has given different descriptions at different times of the nature and frequency of the sexual abuse. After he left AIRS and returned to live with his family in Kincolith, he told his brother Darryl that "Plint made me play with his penis".

[860] Mr. M.W.(2) saw a news report of the criminal proceedings involving Plint in March 1995. Some months later, he saw a notice in the Band office in Kitkatla providing a phone number to call for individuals who had been abused at AIRS. He called the number and on June 20, 1995 provided a statement to Constable Hopp. He knew that the statement would be used to prosecute Plint for his misdeeds at AIRS. He also knew that Plint had been convicted of sexually abusing other children at AIRS.

[861] On June 20, 1995 Mr. M.W.(2) told Constable Hopp that Plint had physically abused him. He described being hit on the head after collecting apples, being struck across his ear when he was caught doing something wrong and being kicked in the legs. He also described to Constable Hopp having to line up at night outside Plint's office wearing only a towel. He said he was led into Plint's office, made to take his towel off and weighed. He did not say anything about being sexually abused by Plint.

[862] Mr. M.W.(2) gave a second statement to Constable Hopp on January 12, 1996, after he had retained Mr. Grant as his counsel in this case. Mr. M.W.(2) says that he returned to give a second statement to the police because he did not give Constable Hopp the whole story before and that bothered him. By returning to the police he intended to tell the whole story. He also intentionally chose Constable Hopp to give his second statement to.

[863] After Mr. M.W.(2) described the physical assaults involving the beating for stealing apples and being struck in the ear by Plint's ring bearing hand, the January 12 statement continued as follows:

A. There was another incident I have been blocking out all this time. It was an incident when I was called to his office. I believe it was on the weekend because there was no other lads around. I don't remember why he called me to the office but I was standing in his office when he came up to me from behind his desk. He put his arm around me held me close to him. I don't know what he was saying but he was rubbing my head while he was talking. He just held me close like one hand on my head, one on my shoulder like close to his crotch. And he pulled his zipper down. He took my hand and put it in his pants. I figured out what was going on and I didn't want to take any part of it. At that time he did molest me. I think he ended up taking me to his room and I remember feeling like I was getting smothered. It was hot. Then next thing I knew I was out of the door again. This is really hard for me. That's all I remember being in his room and then put outside his door.

Q. How many times did that happen to you M.W.(2)?

A. I think that was the only time it happened. I don't like to think about it....

Q. M.W.(2) when Plint stuck your hand in his pants, what did he say or do?

A. He was just making me rub his crotch.

Q. What happened when he took you into his living quarters?

A. He was making me do the same thing he was making do in his office. Fondle him ....

Q. M.W.(2) did Plint do anything to you before, during, or after he made you fondle him?

A. He was just holding me close to him rubbing my head and my back ... .

Q. M.W.(2) is there anything that happened that we haven't talked about?

A. That was the only thing. That was the only part I left out.

[864] On January 31, 1996, the Statement of Claim in this action was filed for Mr. M.W.(2). The particulars of sexual abuse alleged included:

[865] Mr. M.W.(2) testified that the Statement of Claim accurately sets out his claim about what Plint did to him.

[866] In January, 1998 Mr. M.W.(2)'s interrogatory answers stated that Plint's assaults included:

i) fondling my genitals and masturbating me;

ii) forcing me to fondle the genitals of and to masturbate Plint; and

iii) acts of physical violence.

Mr. M.W.(2) testified that those interrogatory answers were true.

[867] Shortly after hearing the trial testimony of William Blackwater, Melvin Good and Mr. M.W.(2)'s three brothers, Darryl, M.W.(1) and M.W.(3), Mr. M.W.(2) went to see Dr. Brasfield in February 1998. He understood that Dr. Brasfield was available as a counsellor for the plaintiffs in this case. On that occasion for the first time, Mr. M.W.(2) suggested to Dr. Brasfield that the sexual assaults by Plint included oral and anal rapes.

[868] On October 18, 1999 Mr. M.W.(2) attended an assessment with Dr. Robert Ley, a psychologist who gave expert evidence on behalf of Mr. M.W.(2). According to Dr. Ley, Mr. M.W.(2) told him that the first incident of sexual assault involved Plint forcing Mr. M.W.(2) to touch Plint's genitals, Plint forcing Mr. M.W.(2) to perform oral sex on Plint and Plint anally raping Mr. M.W.(2). He told Dr. Ley that the sexual abuse by Plint was frequent and ongoing, that typically he was required to fellate Plint and that oral and anal sex were very common.

[869] Prior to January 31, 2000, Mr. M.W.(2) was assessed by Dr. Desmond J. Coen, a psychologist and neuro-psychologist who gave expert evidence on behalf of Canada. According to Dr. Coen's report, Mr. M.W.(2) initially reported that he did not know how many times he was assaulted but later agreed that it was more than ten times in each of the four years Mr. M.W.(2) was at AIRS. Mr. M.W.(2) mentioned an incident of fondling to Dr. Coen and also said that anal intercourse had occurred. Mr. M.W.(2) did not tell Dr. Coen that any oral sex had taken place during these assaults.

[870] In direct examination Mr. M.W.(2) testified that during the first assault Plint forced him to fondle Plint's penis, to perform oral sex upon Plint and to be subjected to anal intercourse. Of subsequent assaults, Mr. M.W.(2) testified during direct examination that he did not remember how many times it happened although he did know that it happened "quite a bit, quite often". He testified that the oral and anal rapes were part of each assault. The next day, on February 10, 2000, Mr. M.W.(2), still in direct examination, testified that the assaults took place at least once a month.

[871] The defendants have admitted that Plint sexually and physically assaulted Mr. M.W.(2) in an unspecified manner. They say that the evidence is sufficient to establish only one incident of sexual assault: specifically that Plint on one occasion took Mr. M.W.(2)'s hand and placed it inside Plint's pants on his penis.

[872] However the defendants' specific admission is that Mr. M.W.(2) was assaulted as alleged in the statement of claim between January 1, 1961 and December 31, 1963. Those allegations are that he was forced to fondle the genitals of and to masturbate Plint. Given the defendants' admission I am not satisfied that the court's finding ought to be restricted to a single incident as they argue. It is likely that these events occurred on more than one occasion.

[873] However the more recent descriptions by Mr. M.W.(2) of additional, more severe sexual assaults are not credible. In my view they most likely represent the adoption by Mr. M.W.(2) of evidence he heard in the early stages of the trial concerning the assaults suffered by his three brothers, William Blackwater and Melvin Good.

[874] Of the various descriptions of the assaults which Mr. M.W.(2) provided prior to testifying in this case, the only descriptions which were consistent were those which Mr. M.W.(2) provided to his brother Darryl after his return to Kincolith from AIRS and the one he provided in his second statement to Constable Hopp on January 12, 1996: that is that Plint forced Mr. M.W.(2) to fondle Plint's penis. While I can accept that Mr. M.W.(2) failed to provide an accurate report as to frequency, I cannot make an additional finding that the abuse was more severe as described in his later retelling of events.

[875] There are also circumstantial indicators of reliability, which support this conclusion. When Mr. M.W.(2) reported to his brother in Kincolith, he was ten years old. He was in a safe, secure environment in his home village of Kincolith. He was speaking to his brother Darryl. Both brothers had been at AIRS during the same period.

[876] While Mr. M.W.(2)'s counsel suggests that he did not go into detail when discussing this incident with his brother, he did provide a strikingly similar description of the sexual assault to Constable Hopp on January 12, 1996. He had taken it upon himself to contact Constable Hopp and return because he was bothered by the fact that he had not told the whole story of his assaults at AIRS during his first statement on June 20, 1995. He testified that when he returned it was his intention to tell her the whole story.

[877] Mr. M.W.(2) also understood that his statement would be used by the RCMP to prosecute Plint for his misdeeds at AIRS. During his interview with Constable Hopp on January 12, 1996 Mr. M.W.(2) stated, "I'm just relieved that he's being charged for the things that he's done".

[878] This evidence supports a conclusion that Mr. M.W.(2) fully disclosed all of the particulars of the type of sexual assault he suffered at the hands of Plint when he spoke to Constable Hopp on January 12, 1996.

[879] Mr. M.W.(2)'s explanation for not disclosing to Constable Hopp what he now says were all of the sexual assaults at AIRS was because Const. Hopp was female and he didn't feel comfortable telling her.

[880] This is difficult to accept. It was Mr. M.W.(2) who arranged to give his second statement to the RCMP. No one forced him or even prompted him to give the second statement. Mr. M.W.(2) by his own admission wanted to tell the whole story to see that Plint was charged criminally for what he had done. Only seven months previously he had met with Constable Hopp for his first statement. Mr. M.W.(2) knew Constable Hopp was a woman. Nevertheless, he specifically singled out Constable Hopp to meet with to tell the whole story to at the time he gave his second statement. He made no effort to arrange his second interview with a male officer.

[881] Approximately two weeks after his second interview with Constable Hopp, Mr. M.W.(2)'s Statement of Claim was filed. He agreed in cross-examination that the specific allegations of abuse in the Statement of Claim accurately set out his claim about what Plint did to him. These are: being forced to fondle Plint's genitals, Plint fondling him and acts of physical violence. His interrogatory answers were consistent with his pleading.

[882] Nowhere in his evidence has Mr. M.W.(2) suggested that Mr. Plint fondled or masturbated him. Those allegations are not proved. The allegation of sexual assault that remains from those set out in the Statement of Claim is consistent with what Mr. M.W.(2) told his brother over 30 years ago and with what he told Constable Hopp on January 12, 1996: on one occasion Mr. Plint forced Mr. M.W.(2) to fondle Mr. Plint's penis.

[883] It was only after Mr. M.W.(2) heard graphic testimony from each of his three brothers and from William Blackwater and Melvin Good in February of 1998 that he began to assert that the sexual assaults committed upon him by Plint involved anything more than a single incident wherein Mr. M.W.(2) was made to fondle Plint's penis. It appears that on the same day that the last of Mr. M.W.(2)'s brothers testified, February 5, 1998, Mr. M.W.(2) described for the first time to Dr. Brasfield that the sexual assaults committed upon him by Plint included oral and anal rapes. Mr. M.W.(2) also adopted the evidence of many less dramatic experiences from the first witnesses.

[884] There are many inconsistencies and contradictions in Mr. M.W.(2) evidence. However the defendants chose to admit that Mr. M.W.(2) was sexually abused by Plint as set out in the pleadings. In my view that obliges me to find that Plint took Mr. M.W.(2)'s hand and placed it inside Plint's pants on Plint's penis and that it likely occurred on more than one occasion between January 1, 1961 and December 31, 1963.

[885] Two months before testifying at trial Mr. M.W.(2) stated on discovery that he had no memory of his parents before he went to AIRS and only a vague memory of his life at that time. However at the trial he was able to describe more details of his life.

[886] At AIRS, Mr. M.W.(2) had a difficult time. He felt lonely, with no contact from his parents and little contact with his brothers. Mr. M.W.(2) fought with the other children. He felt he either had to fight or get pushed around. Fighting was part of the daily ritual. He was also forced to run the gauntlet several times.

[887] Mr. M.W.(2) gave conflicting evidence about being physically disciplined at AIRS. At his discovery, he said that he did not remember any student at AIRS being disciplined for speaking his Native language. However he told Dr. Ley that Plint beat him for this.

[888] Mr. M.W.(2) contends that his ear was injured as a result of being struck so often by Plint; he says this required treatment in the infirmary. However in response to interrogatories, Mr. M.W.(2) failed to mention this incident. There was no proper medical evidence led to support the contention that he sustained a permanent loss of hearing as a result of being struck by Plint. Even if there were some reliable medical evidence that Mr. M.W.(2)'s hearing loss was related to physical trauma, it would be impossible to determine which specific traumatic event caused his hearing loss since he has been involved in many fights during his life.

[889] After three years at AIRS Mr. M.W.(2) returned with his brothers to Kincolith in 1967 and attended the Indian Day School. He spent four years there, doing Grade 5, 6 and two years of Grade 7. Mr. M.W.(2) says that he did not know how to do the math or the English and his teachers did not take the time to help him.

[890] M.W.(1) testified that by 1967 both parents were drinking excessively. Presumably Mr. M.W.(2) would have also witnessed a great deal of alcohol abuse when he returned home in 1967; both of his older brothers were drinking at that time as well.

[891] Mr. M.W.(2) left his family home to attend Grade 8 in Prince Rupert. Before he left Mr. M.W.(2) almost drowned when his father's fishing boat exploded. His brother M.W.(1) pulled him from the water. Mr. M.W.(2) saw his father on the boat with his clothes and hair on fire, screaming and struggling to get off the boat having fallen through an open hatch. He watched his father in that helpless condition until his brother was able to wrestle his father off the boat and into the water. He saw his father with his skin peeling from his face and hanging down from the palms of his hands. Mr. M.W.(2) was hospitalized for three weeks and watched his father deal with a painful recovery from his injuries.

[892] This was doubtless a traumatic event in Mr. M.W.(2)'s life. He almost drowned and was forced to watch helplessly as his father was in flames before him. After this event Mr. M.W.(2)'s marks dropped in Grade 8 and he was put on a special program. He did not complete the requirements for many of his courses.

[893] Mr. M.W.(2) started drinking alcohol in Grade 8 with the other members of his soccer team, including his two older brothers, to celebrate victories. After that, Mr. M.W.(2) would occasionally drink with his friends. He agreed that drinking was just something to do when he got together with a group of his friends.

[894] By the time Mr. M.W.(2) was 18, he was drinking openly with his parents, occasionally getting drunk with them. He smoked marijuana when he was with a group of his friends in a social setting. Given Mr. M.W.(2)'s family history of alcohol abuse and that drinking and smoking marijuana was an accepted part of the social routine which he enjoyed with his peers, it is likely that he would have demonstrated the same pattern of substance abuse in the absence of sexual abuse by Plint.

[895] Mr. M.W.(2)'s evidence about where he worked, when he worked, and where he lived is almost impossible to unravel. His responses to interrogatory questions cannot be reconciled with his trial evidence. When put to him in cross examination that he was "horribly wrong" in his interrogatory answers as to where he had lived over certain periods of his life, Mr. M.W.(2)'s responded by saying: "So what if I got it wrong." The difficulty with this answer is that it calls into question the reliability of the rest of his evidence to the extent he approached it in the same manner.

[896] I am not satisfied that Mr. M.W.(2) has proved when it was that he was out of work, much less that any such a period of unemployment was causally related to the sexual assaults by Plint. As for the future, Mr. M.W.(2) revealed rather elaborate entrepreneurial plans to Dr. Coen. There was no suggestion that these have been delayed or otherwise affected by the sexual assaults at AIRS.

[897] Unlike Dr. Ley, Dr. Coen reported no apparent signs of distress in Mr. M.W.(2) during his assessment. Even when discussing his experiences at AIRS, Mr. M.W.(2) demonstrated to Dr. Coen no evidence of emotional distress.

[898] Dr. Coen recorded that Mr. M.W.(2) believed that he had been picked on because of his slowness at school. He described his current psychological adjustment as follows:

[899] With respect to post-traumatic stress disorder, Dr. Coen noted:

[900] Dr. Coen based his opinion on Mr. M.W.(21)' statements to him that he suffered abuse of moderate to severe intensity including multiple incidents of anal intercourse. That is significantly different than the evidence at trial and the findings of fact. This makes it difficult to place much weight on Dr. Coen's opinion that there is a causal relationship between the sexual assaults and Mr. M.W.(2)'s psychological symptoms.

[901] Dr. Coen administered neuropsychological tests to Mr. M.W.(2). These show cognitive impairment. In a test measuring his general intellectual abilities, Mr. M.W.(2) scored at the 12th percentile, which can be converted to an I.Q. at the low end of the average range. Dr. Coen noted that a score in that range is not normally associated with successful completion of high school without some difficulties. Dr. Coen noted further that such an I.Q. classification was consistent with the most lucrative employment position which Mr. M.W.(2) had attained: a fish hatchery worker. Based on Dr. Coen's test results, it appears that Mr. M.W.(2) was able to achieve an employment level commensurate with his intellectual abilities.

[902] Dr. Coen opined that Mr. M.W.(2)'s primary psychological difficulty is cognitive impairment. He described the cause as follows:

[903] Dr. Coen stated later in his report:

[904] In Dr. Coen's opinion, Mr. M.W.(2)'s primary psychological problem is unrelated to the sexual assault he suffered at AIRS. He considers this to be so notwithstanding his comparatively severe factual assumptions concerning the nature and frequency of the sexual assaults.

[905] Dr. Coen also diagnosed Mr. M.W.(2) as suffering from a dysthymic disorder which he described as a chronic low intensity form of depressed mood. In discussing the cause, he stated:

[906] Dr. Ley's evidence was of limited assistance. He did not ask Mr. M.W.(2) why he began drinking alcohol. Dr. Ley agreed that a person's drinking experience commonly starts with a group of peers who get together and steal alcohol from somebody's house. Dr. Ley did understand that Mr. M.W.(2)'s family had a history of "problematic drinking". He understood that Mr. M.W.(2)'s family members were serious abusers of alcohol. He also conceded the probability of alcoholism even in the absence of any sexual abuse during cross examination:

Q. Dr. Ley, I'm going to suggest to you if he had not been sexually abused at all in all likelihood, at least based on a balance of probabilities he, like the rest of his family, would have been an alcoholic?

A. Yes I think that chance exists, of course.

Q. Well it's a probability isn't it?

A. Yes.

[907] Dr. Ley was asked about the common features between the description Mr. M.W.(2) presented of his experiences and the descriptions provided by his brother M.W.(3), whom Dr. Ley also had assessed. He said during cross examination:

Q. And you found that his story to you, quite contrary to every other story he told previously, was remarkably consistent with what had happened to his brother M.W.(3), didn't you?

A. Yes I found it consistent with the sexual abuse experiences described by M.W.(3).

Q. It wasn't just the sexual abuse, though, it was the stealing of the lunches and other idiosyncratic things that seemed to happen exactly to Mr. Mr. M.W.(2) as they did to his brother M.W.(3)?

A. There were some common features of their experience that were common yes.

Q. But remarkably?

A. My recollection of M.W.(3) Watts' experience and the similarity with Mr. M.W.(2) pertained to the nature of the sexual abuse, the other kinds of experiences of maltreatment that they had there and some commonalties with respect to stealing lunches and I believe stealing apples from a nearby tree.

Q. It was the same story, wasn't it, about the apples and lunches?

A. It was similar, yes, identical.

[908] In his report, Dr. Ley identified physical signs exhibited by Mr. M.W.(2) during the interview, which he took to be signs of distress. However, in cross-examination, Dr. Ley agreed that those signs were also consistent with someone who was prevaricating: avoiding eye contact, nervousness, changing pallor and perspiring.

[909] During his assessment Dr. Ley found that Mr. M.W.(2) was open to discussing the history of his sexual abuse but was relatively closed with respect to other negative life experiences. He did not try to explore the extent of those other negative life experiences. He let the patient dictate the scope of the discussion concerning the causative factors of his ongoing psychological problems.

[910] While this may be valid in a clinical or treatment setting, it is less so in a forensic setting. In this case such an approach failed to provide these experts with a proper factual basis for the opinions they chose to express. In the result their opinions are undermined and are less helpful to the court.

[911] Dr. Ley was asked if there was anything that Mr. M.W.(2) might say differently in Court that would cause him to change the conclusions in his report. His answer did not refer to anything that Mr. M.W.(2) might have told him about his life experiences outside of AIRS. He stated:

What Dr. Ley did not do in this answer is address the negative life influences on Mr. M.W.(2) both pre- and post AIRS.

[912] Dr. Ley did concede after further cross examination that if Mr. M.W.(2)'s home life prior to AIRS was not as positive and nurturing as he had explained, then he would have to reconsider the opinions he expressed relating to the influence of Mr. M.W.(2)'s pre-residential school life on his current level of functioning. Dr. Ley agreed that he noted a strong tendency in Mr. M.W.(2) to minimize the severity of negative life events.

[913] Dr. Ley concluded that Mr. M.W.(2)'s reports of having sleep difficulties as an adult were consistent with PTSD. However, he did not ask Mr. M.W.(2) if he had any sleep problems prior to AIRS. Dr. Ley did concede that for such a symptom to be consistent with a diagnosis of PTSD, it is necessary that the symptom not exist before the traumatic event.

[914] Dr. Ley also concluded that Mr. M.W.(2)'s description of "recurrent dreams" fulfilled one of the criteria for PTSD. Yet he did not ask Mr. M.W.(2) what those dreams were about. Dr. Ley suggested that the dream which Mr. M.W.(2) described to the court, of being chased with a knife, could be consistent with PTSD related to AIRS. However he agreed that if Mr. M.W.(2) was actually threatened by his wife with a knife, as he also described in his testimony, that could suggest that the recurrent dreams related to that domestic event rather than AIRS.

[915] Because of the foregoing I regretfully conclude that I can attach little weight to Dr. Ley's evidence.

[916] Given my findings with respect to the sexual abuse of Mr. M.W.(2) by Plint, the question is the degree to which Mr. M.W.(2)'s life would have been different had he not suffered those assaults. While the defendants say Mr. M.W.(2) has only proved one incident in which Plint placed Mr. M.W.(2)'s hand on Plint's penis, I have concluded that this likely occurred more than once. However, based on Mr. M.W.(2)'s evidence, I am unable to determine the frequency. On all of his evidence it is difficult to conclude that his life would have been significantly different in the absence of Plint's abuse.

[917] Although Mr. M.W.(2) may not have a clear memory of his early life, the evidence of his brother and mother suggests that he grew up in an environment where his father's drinking was excessive and caused the occasional physical confrontation between his parents.

[918] Mr. M.W.(2) was exposed to a great deal of violence at AIRS. He was involved in many fights and was forced to run the gauntlet on several occasions. He felt very much alone while.

[919] After leaving AIRS Mr. M.W.(2) returned to a family environment which was remarkable for the degree of alcohol abuse in the household. Both of Mr. M.W.(2)'s parents were abusing alcohol and his older brothers were also drinking. His brother M.W.(1) would wait until his parents passed out to steal their alcohol. Mr. M.W.(2)'s drinking began in the social environment of a soccer team on which both of his older brothers played. It is not surprising that Mr. M.W.(2) joined them and his teammates in celebrating a particular victory by drinking. Thereafter, Mr. M.W.(2) occasionally drank alcohol and smoked marijuana with his friends, which was an accepted and common occurrence in his community generally and certainly in his circle of friends.

[920] Mr. M.W.(2) lived through at least two very traumatic experiences in his life while living at home. The first was the family apartment fire. The next was when just prior to Grade 8 he saw his father's fishing boat explode.

[921] Unfortunately for Mr. M.W.(2) and quite apart from the other troubles he has endured in his life, he also suffers from a cognitive impairment. This has affected his life the most; it is not causally related to his experiences at AIRS.

[922] Mr. M.W.(2)'s non-pecuniary and aggravated damages must be assessed on the basis that he has not proved that his ongoing psychological problems were caused by the incidents of sexual assault at AIRS. I assess these damages at $15,000. He will be awarded punitive damages against Plint of $5,000.

[923] He has not demonstrated that the sexual assaults had any impact on his pattern of earnings in the past or that they will affect his earnings in the future. The other circumstances in Mr. M.W.(2)'s life provide ample explanation for his rather poor vocational record.

[924] Mr. M.W.(2) has not demonstrated a need for ongoing counselling specifically required to address the acts of sexual assault which he endured.

[925] The plaintiffs claim pre-judgment interest on the damages awarded. Entitlement to court order interest is statutory. There was no right to pre-judgment interest at common law. The Court Order Interest Act, R.S.B.C. 1996 c. 79 does not apply to causes of action that arose before June 1, 1974. Any and all sexual and physical abuse in these actions as well as any other legal wrongs suffered occurred before June 1, 1974. When the Legislature elected to remove the limitation period for claims of a sexual nature, it could at the same time have amended the provisions of the Court Order Interest Act. It chose not to do this. In the absence of such an amendment I conclude that the plaintiffs are not entitled to court order interest.

[926] As requested by counsel costs are reserved and may be spoken to.

[927] Canada and the Church are each vicariously liable for the provable damages suffered by Frederick Leroy Barney, R.F., Mr. M.W.(2), R.J., D.S. and M.W.(1)(the "remaining plaintiffs").

[928] The claim of M.J. is dismissed.

[929] The claims of the remaining plaintiffs against the defendants for direct liability based on negligence and breach of fiduciary duty are dismissed.

[930] The claims of the remaining plaintiffs against Canada for breach of non-delegable statutory duty are allowed.

[931] Pursuant to the provisions of the Limitation Act, the claims of the remaining plaintiffs are statute barred save and except for those claims based on misconduct of a sexual nature.

[932] As between Canada and the Church liability is apportioned 75% to Canada and 25% to the Church.

[933] Non-pecuniary and aggravated damages are awarded as follows as against Canada and the Church:

[934] The plaintiffs' claims for court order interest are dismissed.

[935] As requested by the parties, costs are reserved and may be spoken to.

"D.I. Brenner, CJSC"
The Honourable Chief Justice D.I. Brenner

The Plaintiffs are identified solely by his/her initials, except for William Richard Blackwater, Colbert Melvin Good, Daniel Watts, and Frederick Leroy Barney, who request that their full name be used.

These reasons have been amended accordingly.

August 2, 2001 -- Corrigendum to the Reasons for Judgment issued by Chief Justice D.I. Brenner advising the following:

(1) In addition to counsel recorded, Mr. Michael Thomas also attended at trial as counsel for the defendant, The United Church of Canada and Mr. Robert Garrett also appeared at trial on behalf of Her Majesty the Queen. This has now been recorded as shown on page 3 of my Corrigendum.

(2) At paragraph 933, the award for non-pecuniary and aggravated damages for R.F. states $95,000.00 and this should, in fact, be $85,000.00.

(3) At paragraph 928, M.S. should, in fact, be M.J.