[1] In 1967-68, the plaintiff, whose maiden name was Hilda Hackett, was a student at the Sechelt Indian Residential School ("SIRS"), an institution established by the federal government ("Canada") pursuant to its powers and duties under the Indian Act R.S.C. 1886, c.28. She claims that while she was there she was repeatedly sexually assaulted by Brother Ian McDougall, a member of the Order of the Oblates of Mary Immaculate (the "Oblates"), who operated SIRS pursuant to periodic contracts with Canada.

[2] The plaintiff says that Canada and the Oblates are vicariously liable for those assaults or, alternatively, negligent or in breach of their fiduciary duty to her for permitting the assaults to take place while she was under their care. She claims damages as a result.

[3] I have found that the plaintiff has failed to prove that she was sexually assaulted by Brother McDougall. I have not proceeded to consider the remaining issues, as I believe it would not be productive to determine them on the basis of hypothetical facts.

[4] The plaintiff's claim is accordingly dismissed.

[5] SIRS was established in 1904 and operated until 1975, when it was closed by Canada. In 1967-68, it was housed in a three-storey brick building adjacent to the Sechelt Reserve. By that time, most of its students had been integrated into the public schools in Sechelt, and SIRS served primarily as a residence for First Nations students from Catholic families who lived on isolated reserves with limited educational resources. The plaintiff was one of about 125 students between the ages of 6 and 17 who resided at SIRS in 1967-68.

[6] Throughout its operations, SIRS was staffed by members of the Oblates and the Sisters of Instruction of the Child Jesus (the "Sisters"), who operated the school pursuant to periodic contracts with Canada. As well, SIRS employed a number of First Nations staff in the laundry and kitchen, and as night watchmen, most of whom were from the neighbouring Sechelt Reserve.

[7] The Oblates' stated mission is "to teach the good news to the poor". Father LaPlante, who has been a member of the Oblates for over 50 years, and testified as their representative, explained that they have been active in British Columbia since the 1840's, and have pursued this mission in part through their involvement in the Indian residential school system.

[8] In 1967-68, four Oblate members were employed at SIRS. Father Power was the principal, Brother Francis McDonald was the senior boys' supervisor, Brother Ian McDougall was the junior and intermediate boys' supervisor, and Brother Ed McDonald was the maintenance man. Father Power and Brother Ed McDonald are deceased. Brother Francis McDonald is alive but has health problems and did not testify.

[9] Brother McDougall, whom the plaintiff alleges was the perpetrator of the sexual assaults on her, gave evidence at the trial. He left the Oblates in 1971, and I therefore refer to him as Mr. McDougall in these Reasons, except in recounting the plaintiff's evidence about him.

[10] Mr. McDougall was born on February 4, 1944, and raised in a religious home. He entered the Oblate noviciate in 1962, and completed the initial stage of his religious training in 1964. He then entered the next stage, taking annual temporary vows of chastity, poverty, obedience, and perseverance for seven and a half years, after which he was to have the opportunity to take his final vows.

[11] During this training he was assigned to various "obediences" by the Oblates. In early 1965, he was directed to go to the Indian residential school on Kuper Island as junior boys' supervisor. He was transferred to SIRS as junior boys' supervisor in September, 1965, where he remained until 1970.

[12] The Sisters on staff at SIRS in 1967-68 worked as teachers, nurses, and supervisors for the female students.

[13] Sister Margaret Gormley joined the Sisters in 1953, and was at SIRS from 1965 to 1970 as a teacher and as the Sister Superior. Counsel agreed that the person whom the plaintiff referred to in her evidence as "Mother Theresa" was in fact Sister Gormley. I refer to her as Sister Gormley throughout these Reasons, except in recounting the plaintiff's evidence about her, where I identify her as Mother Theresa/Sister Gormley to avoid confusion.

[14] Sister Therese Orieux joined the Sisters in 1955. She was at SIRS for one year, in 1967-68, as the senior girls' supervisor. It was agreed that the person referred to by the plaintiff during her testimony as "Sister Marie" was in fact Sister Orieux. I refer to her in these Reasons as Sister Orieux, except in recounting the plaintiff's evidence, where I refer to her as Sister Marie (Orieux).

[15] Both Sister Gormley and Sister Orieux remain members of the Sisters, and have continued to work for the Order since their time at SIRS. Both testified at the trial.

[16] Sister Lucien Trudeau, who was also known as Sister Noella, was the nurse at SIRS for several years, including 1967-68. She is deceased. I refer to her as Sister Noella.

[17] Two of the First Nations staff employed at SIRS in 1967-68 also testified for the defence. Rena Henry, who was known by her maiden name of Wilson at SIRS, is a member of the Cowichan band. After completing her education at the Indian residential school in Mission, Ms. Henry worked at SIRS as the junior girls' supervisor from 1967 to 1972. Edna Johnson is from the Sechelt Reserve, and worked in the kitchen and in the laundry at SIRS from 1956 to 1972.

[18] The plaintiff was born on December 19, 1952, and is a member of the Hamalco Band. As a child, she lived with her family in Church House, a small and remote reserve near Bute Inlet. She was one of eight children, and is the youngest of the four who survived childhood. Her father was a fisher and logger whom she described as a good provider, although she said he was not at home much, and she did not know him well. She described a close and loving relationship with her mother, who died in 1996.

[19] In preparation for this litigation, the plaintiff was interviewed by Mr. Stewart, a clinical therapist. She told him that there had been no abuse in her family. However, in her evidence at trial she acknowledged that her father, mother, and three surviving siblings were all alcoholics, and that her parents, and her father and brothers, sometimes fought. She said that her mother sent her to relatives' homes when she drank, to insulate her from the negative effects of alcohol and violence.

[20] In 1963, the plaintiff's father committed suicide. She described everything then as "cold, empty, and dark" for a period. Her siblings had left home, and she and her mother had to fend for themselves. She nevertheless said that she had a largely happy life with her mother.

[21] The plaintiff began school in Church House when she was seven or eight years old, and completed Grade 6 there. In 1967, when she was 14, she was taken to SIRS for Grade 7. She described her departure as abrupt and traumatic. She testified that two white men and her mother came to get her at the school in Church House in early September, and the men took her and five other children away to Sechelt. She said that there was no advance notice, and her mother only had time to put a few clothes in a small suitcase for her. She had never been away from Church House before, and she said she was terrified.

[22] She gave Mr. Stewart a somewhat different account of these events. She told him that Father McDonald, a priest who came to Church House, had suddenly told her that she had to attend school in Sechelt. She said that she had to leave so quickly that she did not even take a suitcase, but he told her she would not need any of her own clothes.

[23] When her statements to Mr. Stewart were put to her in cross-examination, the plaintiff testified that he had recorded them erroneously. She maintained that she had been taken away by two white men, and that she took a suitcase with her. When excerpts from her examination from discovery were put to her in which she confirmed the version of her departure that she had given to Mr. Stewart, the plaintiff said that her answers had been incorrectly recorded at her discovery.

[24] The plaintiff testified that on her arrival at SIRS, she was met by Father Power, Mother Theresa (Sister Gormley), and Sister Noella, whom she described as having a mean look in her eyes. She was later introduced to Sister Marie (Orieux), the girls' dormitory supervisor, whom the plaintiff said was a good person, and the staff member with whom she developed the closest relationship.

[25] The plaintiff said that she encountered Brother McDougall at suppertime on her first day. She recalled him as always standing at the door of the students' dining room as the children entered for meals. She said she was told that he was a supervisor on the boys' side, and that she was not allowed to go there. She testified that Brother McDougall had a bad attitude toward the children from Church House, and called them racist names like "Church House winos", "dirty Indians", and "black squaws".

[26] The plaintiff said that she never saw First Nations staff working at SIRS. Nor did she recall any junior girls there.

[27] The plaintiff described the daily routine at SIRS. She slept in the girls' dormitory on the top floor. Each morning, Sister Marie (Orieux) woke the girls. They said morning prayers, then washed and had breakfast. They wore school uniforms, and were taken to school from SIRS by bus. Sometimes they were brought back to SIRS for lunch, and other days they were sent to school for the day with no lunch.

[28] She said that when they returned from school, they changed into their own clothes. Some of the students were involved in sports or other organized activities, but she was not. She and other girls did chores in the laundry room, supervised by Sister Noella. When these were complete they had supper, did their homework, and then went to the dormitory. They said evening prayers, had a snack, and were in bed by 8:30.

[29] The plaintiff testified that she was physically punished almost every day by Mother Theresa (Sister Gormley) and Sister Noella for breaking the rules, and she lived in fear because of this. She said that usually she was strapped on her palms with a black strap or yardstick in Mother Theresa's (Sister Gormley's) office. Five or six girls would be lined up outside the office each day to be strapped. The strapping was loud enough that everyone could hear it. The plaintiff said that once she was sent home from school for two days because her hands were so swollen that she could not hold a pencil.

[30] She testified that she was strapped for speaking her native language. She agreed that during her interview with Mr. Stewart, she told him:

She also confirmed that in her sworn answer to interrogatories, she had said that on her arrival at SIRS she spoke "Salish and a few words of English".

[31] By contrast, in her evidence at trial and at her examination for discovery the plaintiff acknowledged that she had had six years of schooling in English at Church House, and that she could speak English when she arrived at SIRS.

[32] The plaintiff testified that Sister Noella punished her regularly for not doing the laundry properly. She was strapped, or had to run around the laundry room on her knees. Sometimes Sister Noella also made her clean the hall floor with a toothbrush. The plaintiff said that this went on for about six months, until she learned how to do the laundry correctly. She testified that she has ongoing problems with her knees as a result.

[33] The plaintiff said that she was also punished for trying to put her food back when she did not like it. When Mother Theresa (Sister Gormley) and Sister Noella caught her, they force fed her, and sometimes strapped her as well. She said this happened every other day.

[34] The plaintiff testified that if she pulled her hands away when she was strapped, they slapped her on her ear. She said that she has had three surgeries on her left ear which she attributes to this. She acknowledged that on May 2, 1996, she told a health practitioner that she had broken her ear drum when she was thrown in water, but testified that was untrue. She said that her ear injury had occurred at SIRS, when she got up to get a drink in the bathroom one night and Sister Noella came up behind her, grabbed her hair, and held her head under the cold tap. When shown her sworn answer to an interrogatory, in which she said that Mother Theresa (Sister Gormley) had forced her head under flowing water, the plaintiff said that this was an error.

[35] With respect to communication with her mother while at SIRS, the plaintiff confirmed that she told Mr. Stewart:

[36] The plaintiff then acknowledged that at her discovery, she had said that her mother sent her chocolates, chips, and pop about once a month while she was at SIRS, and that she had gained weight as a result. She also acknowledged her evidence at discovery that she had written daily letters to her mother telling her about her abuse at SIRS; that Sister Marie (Orieux) told her that Mother Theresa (Sister Gormley) and Sister Noella destroyed them before they were sent because they were concerned about the contents; and that Sister Marie (Orieux) had also told her that her mother tried to telephone her, and they would not let the calls through.

[37] The plaintiff testified that she ran away from SIRS before Christmas to see her mother. She said that she took a bus to Powell River but Father McDonald, a priest who knew her from Church House, found her after one day and forced her to go back to SIRS, where she spent Christmas.

[38] The plaintiff said that her mother had sent her some money, and this is what she used to run away before Christmas. She then confirmed that at her discovery she had said that she did not go home at Christmas because her mother did not have the money for her fare.

[39] The plaintiff said that she did go home for Easter, and spent seven to ten days with her mother in Church House.

[40] She testified that in June her mother came to SIRS to get her, but she was not allowed to leave for two weeks after the other children had gone, because they wanted to talk her into not saying anything about what had happened to her there. Eventually they allowed her to leave and meet her mother.

[41] The defence witnesses who had been at SIRS painted a very different picture of life there. Most were unable to comment on specific events involving the plaintiff, as they did not remember her. Ms. Henry alone had a sketchy memory of her as an older girl who wore red lipstick.

[42] All of the defence witnesses acknowledged that they stood in the same position as parents to the children under their care at SIRS. They had complete control over them, and were responsible for their security and well-being.

[43] Sister Gormley, Sister Orieux, Mr. McDougall, and Ms. Johnson all testified that they had no recollection of any complaints by the students about physical abuse or the living conditions at SIRS. Nor did they recall complaints among the staff about the school or each other.

[44] Ms. Henry did not paint quite as rosy a picture of life at SIRS. She said that the entire system of residential school was oppressive, in the sense that the children were taken away from their homes and families to a place they did not belong. However, she went on to say:

[45] She also said that although Father Power was generally liked by the staff, everyone had conflicts with him. She described disagreements she had with him about her duties and authority, but said that they worked these out. Ms. Johnson described him as strict but kind-hearted.

[46] Sister Gormley and Sister Orieux were described in uniformly positive terms by the other witnesses who had been at SIRS, both in terms of their personal characteristics and their dealings with the children.

[47] Sister Noella was variously described as strict, honest, sincere, direct, and a good nurse, who loved the children. Mr. McDougall said she was business-like but kind with the children. Ms. Johnson remembered her as a "real lady", who was patient with the children and put her heart into her work with them.

[48] The defence witnesses described Mr. McDougall as a shy, quiet, friendly, young man. They said he was easy to get along with and good with the children. None of them had heard of any problem between him and the students.

[49] With respect to the specifics of the plaintiff's account, Mr. McDougall denied calling her or any other student derogatory or racist names. He said he was brought up to be polite and respectful, and he tried to bring those attitudes to SIRS. The other witnesses from SIRS all testified that they had never heard him using such language.

[50] All of the defence witnesses said that the students did not have school uniforms. They wore their own clothing.

[51] With respect to the food at the school, the defence witnesses generally testified that the children's meals were nutritious and adequate. Sister Gormley described their food as good, and could not recall how it compared to the staff's meals. Mr. McDougall testified that initially the staff had better food than the students, but Father Power changed this and their meals became more similar. Ms. Johnson recalled the students' food improving after Canada took over operation of the school in 1959.

[52] Mr. McDougall and Sister Gormley said that the children never went without lunch. They were either given a lunch to take to school, or were brought back to SIRS for lunch.

[53] Sister Gormley, Sister Orieux, and Mr. McDougall testified that they never saw a child being forcefully fed.

[54] The defence witnesses testified that there were a variety of sporting and craft activities available to the children after school at SIRS. As well, many were involved in a pipe and drum band led by Brother Francis McDonald.

[55] Sister Gormley, Sister Orieux, Ms. Henry and Ms. Johnson all testified that the girls did not work in the laundry, scrub the floors, or do heavy cleaning. Those tasks were performed by First Nations staff hired from the Sechelt reserve. They said the children only did light chores associated with looking after their own belongings, clearing the dining room after meals, and keeping their dormitory clean. Ms. Johnson said that occasionally the girls would do cleaning or laundry needed on the weekends, when the regular staff were not there. Sister Orieux said that sometimes she supervised the girls if they wanted to wash their own special items of clothing.

[56] Paragraph 11.12 of the Indian Affairs Branch Field Manual, published by Canada and current in 1967-68, dealt with discipline in Indian residential schools:

b) Any form of punishment tending to humiliate a pupil is to be avoided. This policy applies alike to the use of sarcasm or to the employment of practices calculated to produce distinctive changes in appearances or dress.

c) It is generally approved practice for teachers to abstain from physical contacts with pupils either in anger or affection. Children's reports of such contacts have sometimes been exaggerated as to make the teacher's position untenable.

...

e) Before resorting to the use of corporal punishment, the principal or teacher in charge must be convinced that no other approved form of punishment will have the necessary punitive and corrective effects. The educator must be sure that the pupil was aware of doing wrong. The presence of such a factor as premeditation, deliberate repetition or heedlessness of consequences may sometimes justify a more serious view and the use of corporal punishment.

f) The principal or teacher in charge of a school will decide whether corporal punishment is to be used and will personally administer it in the presence of a witness or witness its administration at a time selected to avoid disturbing the school program. The witness should be a staff member of the same sex as the pupil who is to be punished; the matron at a residential school should witness the corporal punishment of a girl. Only the strap as issued to the principal or teacher in charge will be used. It will be applied only to the palm of the hand.

g) In a special book reserved for the purpose a record will be kept of every occasion of corporal punishment. This record will show the date, the name of the pupil, a description of the offence, the number of strokes on either hand, and will be signed by the person who used the strap and by the witness.

[57] The witnesses from SIRS testified that they were unaware of a book as described in (g) at the school.

[58] Paragraph G of Regulations for Indian Residential Schools was prepared by the Secretariate of the Indian and Eskimo Welfare Oblate Commission in 1956 and dealt with corporal punishment:

[59] All of the witnesses who worked at SIRS in 1967-68, except Mr. McDougall, testified that they had never physically disciplined a child, and had not seen or heard of other staff doing so.

[60] Sister Gormley and Sister Oriuex said that they were told not to physically discipline the children. Sister Gormley testified that she did not have a strap, the girls were never lined up outside her office to be strapped, and she never strapped or other wise physically disciplined them. Sister Orieux said that the mode of punishment for the senior girls was left to her discretion, and she would ground them or fine them, and use the money to buy things for the group. She said that she would have reported physical punishment of a child if she heard about it.

[61] Ms. Henry testified that she was opposed to physical punishment, and never used it on the junior girls. She dealt with misbehaviour verbally. She said that if she had heard about someone physically punishing the senior girls she would have taken steps to stop it.

[62] Mr. McDougall testified that he believed most discipline at SIRS took place by admonition. He said he was instructed by the principal and other staff that corporal punishment was used only as a last resort, and he believed he had been told that no more than three strikes were permitted with a strap. Mr. McDougall said that he had strapped students five or six times for serious misbehaviour during his time at SIRS. He stopped this when Father Power told him not to. He said he never saw any of the sisters dealing harshly with or harming the children. Nor did he see children lined up outside Sister Gormley's office to be strapped, or hear her strapping them.

[63] None of the defence witnesses had seen or heard of a student being made to scrub the floor with a tooth brush, or run around the laundry room on her knees.

[64] With respect to the children speaking their native languages at SIRS, Sister Gormley and Sister Orieux said that the children only knew English. They never heard them speak anything else, and did not believe that the children knew their own languages. Ms. Henry and Mr. McDougall testified that some children spoke their own languages at SIRS, and they never saw the children punished for this.

[65] With respect to the children's mail, Sister Gormley denied reading or destroying their outgoing mail. Sister Orieux testified that the students were allowed to receive letters and packages, and send letters home. She said that the mail was not censored or thrown out.

[66] Sister Gormley and Sister Orieux testified that they could not recall any students running away from SIRS. Ms. Henry said that the only runaways she recalled were two girls who were from the Sechelt Reserve. Mr. McDougall recalled occasional runaways from SIRS, but could not remember any specifically in 1967-68.

[67] Documents entered by agreement of the parties include a letter dated January 8, 1968, from Father Power to the Superintendent of the Fraser Indian Agency. This reports that six students, including the plaintiff and Raymond Wilson, another student from the Hamalco Band, did not return to SIRS after the Christmas holidays. The Quarterly Return for January 1 to March 31, 1968, in which SIRS was required to record the number of days that each student was in attendance, shows that the plaintiff and Raymond Wilson were at SIRS for only 53 of the 90 days in that quarter. Most of the students are recorded as being there for 89 days.

[68] The plaintiff testified that one night about two to three weeks after she arrived at SIRS she got up to use the bathroom, and Brother McDougall came through the swinging doors from the boys' side and accosted her in the hallway outside the girls' dormitory. She said that he walked behind her, put one hand over her mouth, and grabbed her ear with his other hand. He told her not to scream or say anything, and walked her down three flights of stairs to the girls' rec room.

[69] She said that when they got to the rec room he put her down on the floor in front of a couch and pulled her pyjama bottoms down. Then he unzipped his pants and raped her. When he finished, he pulled his pants back up, and she pulled up her pyjamas. He told her to go back upstairs and not say anything to anybody. He then went toward the boys' side through the dining room area. She went upstairs to the girls' washroom, cleaned herself up, and returned to bed.

[70] The plaintiff testified that she had had no previous sexual experience, and she was terrified. She said she did not see anyone else during the incident, and did not tell anyone about it, but the next day two girls told her that they had heard her.

[71] The plaintiff testified that shortly afterwards, the same thing happened. When she got up at night to use the bathroom, Brother McDougall was again waiting in the hallway, behind the swinging doors, and he grabbed her. She said that this time she tried to fight him, but he slapped her across the face. He told her not to scream, and that if she said anything to anyone he would kill her. He then took her downstairs to the rec room where he raped her again. When he finished, he returned to the boys' side through the dining area, leaving her to go back upstairs to the girls' dormitory.

[72] The plaintiff testified that these assaults continued until Christmas, occurring two or three times a week for the first two to three months that she was at the school. She said that they always followed the same pattern.

[73] She said that just before Christmas she tried to tell Sister Marie (Orieux) what was happening to her. Shortly after this, she said that Mother Theresa (Sister Gormley) called her to her office and asked her why she was not asking for pads for her periods. The plaintiff explained that Mother Theresa (Sister Gormley) kept a record of the girls' menstrual periods in a book, and they had to report to her each month to get sanitary pads. She testified that she told Mother Theresa (Sister Gormley) that she had not had a period for three months. She said that she was inexperienced and did not know that she was pregnant until Mother Theresa (Sister Gormley) spoke to her.

[74] The plaintiff said that following this meeting, the frequency of the assaults by Brother McDougall diminished, although they did not stop.

[75] She testified that shortly after the meeting, she went to mass at the Sechelt Reserve, and Mother Theresa (Sister Gormley) told her to go back to SIRS. She did so, and was met by Mother Theresa (Sister Gormley), Sister Noella, and Brother McDougall, at the top of the stairs outside Mother Theresa's (Sister Gormley's) office. The plaintiff testified that Mother Theresa (Sister Gormley) asked her if she was pregnant, and the plaintiff replied that she did not know, that she had missed her periods for three months, but she did not know what was happening to her.

[76] The plaintiff said that Mother Theresa (Sister Gormley) told her to turn with her back toward the stairs. She did so and Mother Theresa (Sister Gormley) and Sister Noella pushed her down the stairs.

[77] The plaintiff said that her stomach and her back hurt from the fall, and her period started almost immediately. The sisters helped her up, and put her to bed in her dormitory for two days, after which Sister Noella took her to see a nurse at the local hospital. The plaintiff said she told the nurse that her stomach hurt, and the nurse told her she had stomach flu. She was sent back to SIRS, where she stayed in bed for another day, and then returned to school. The plaintiff testified that she has had back pain ever since this fall.

[78] The plaintiff said that after her fall down the stairs, Mother Theresa (Sister Gormley), Sister Noella, and Father Power told her not to tell anyone about the assaults. She also testified that Father Power paid for a partial plate to replace teeth she had lost, in exchange for her promise to remain silent. She said that she was strapped as well to remind her not to say anything, but gave no details of when or by whom.

[79] The plaintiff testified that after her fall, the sexual assaults stopped until just before she went home in June, and then Brother McDougall assaulted her again twice. She said that these assaults followed exactly the same pattern as before, with him coming through the swinging doors and accosting her as she came out of the bathroom at night.

[80] The plaintiff said that she told no one about the assaults for over 30 years, until she was approached by a lawyer and a native woman about making a claim. She said she was initially reluctant to do so, but thought it over and decided to proceed with this action.

[81] The plaintiff was extensively cross-examined as to the frequency with which the assaults took place, the period over which they occurred, the timing and manner of her disclosure of them to the Sisters, the resulting confrontation on the stairs, and the medical treatment which followed. This cross-examination was largely based on prior statements made by the plaintiff in sworn responses to interrogatories, at examinations for discovery, and in her dealings with Mr. Stewart.

[82] In interrogatories sworn on June 26, 2001, in answer to a question as to whether she was ever sexually abused at SIRS, the plaintiff responded positively and provided the following details:

At trial, she confirmed this response, with the exception that she denied she had said he grabbed her by the throat. She said he put his hand over her mouth.

[83] In her dealings with Mr. Stewart, the plaintiff gave the following account of the disclosure and resulting events:

[84] The plaintiff confirmed that at her discovery she had said that around November she stopped using the bathroom at nights, and the assaults stopped until around Christmas, when some of the girls went home for the holidays. She said that then Brother McDougall sexually assaulted her in the same manner two or three more times, coming through the swinging doors when she got up to use the bathroom. Then she did not get her period at the end of December.

[85] The plaintiff also adopted the following account of her disclosure to the sisters, given at her discovery. She said that she told Sister Marie (Orieux) that Brother McDougall was raping her when she got up to go to the bathroom. Sister Marie (Orieux) did not seem shocked, and told her that she was lying, and that Brother McDougall was a nice man and would not do that. The plaintiff did not tell anyone else about the assaults. Mother Theresa (Sister Gormley) and Sister Noella found out later on their own, when she had missed her periods for three months. She implied that this was because Mother Theresa (Sister Gormley) kept records of the girls' periods, and they had to report to her each month to get sanitary pads. The plaintiff said they asked her what happened and she told them that Brother McDougall raped her. They had a conference with him, and then the events at mass and on the staircase occurred.

[86] Later during her discovery the plaintiff said she was unsure when she had told Sister Marie (Orieux) about the assaults, but it could have been in June. She then said she thought her miscarriage was in March, and she believed that she had disclosed the assaults to Sister Marie (Orieux) when they started, and before she became pregnant. Later she said that she told Sister Marie (Orieux) about the assaults when she did not get her period, as she knew something was wrong.

[87] At trial, in dealing with these disparate accounts of when she disclosed the assaults, the plaintiff said that she only told Sister Marie (Orieux) about them once, and she believed that was in December. She said that Mother Theresa (Sister Gormley) and Sister Noella then confronted her on the Sunday of the same week.

[88] With respect to the injuries suffered in the fall down the stairs, at her discovery the plaintiff initially said that after the fall they took her to the hospital, and told the people there that she had fallen down the stairs. When this was put to her at trial, she said that her answers at discovery had been improperly recorded, that she did not recall saying this at the discovery, and that she had not been allowed to tell anyone at the hospital that she had fallen down the stairs.

[89] As to her belief that Sister Marie (Orieux) and Brother McDougall were having an affair, the plaintiff confirmed her evidence at discovery that if she was sometimes spared the assaults, she believed this was because Brother McDougall was "doing it to someone else". She said she thought he was having an affair with Sister Marie (Orieux) because she had seen him leaving her room on the landing and returning to the boys side through the swinging doors a few times, when she was up to go to the bathroom in the middle of the night.

[90] The plaintiff was not extensively cross-examined as to her description of the assaults themselves, and her account of these remained consistent.

[91] The former staff members of SIRS all testified to the institutional separation of male and female students and staff there. While they described the reasons for this in different ways, it was clear that a central rationale was sexual propriety. One feature of this policy was the division of the dormitories and most of the living areas of the building along gender lines.

[92] The physical layout of SIRS was consistently described by the witnesses, and confirmed by plans of the building. SIRS had three storeys, which I will refer to as the bottom, middle, and top floors. Male students and staff slept in dormitories and rooms on what I take to be the west side of the building, and female staff and students were accommodated similarly on the east side. There was a boys' staircase at the west end of the building and a girls' staircase at the east end.

[93] On the bottom floor, there were separate recreation rooms and lavatories for girls and boys on the east and west sides, respectively. In between these were the students' dining room, the staff dining room, and several rooms associated with the kitchen, the laundry, and other services to the building.

[94] On the middle floor, the intermediate boys' dormitory, which housed about 25 boys, and another boys' recreation room were located on the west side. Mr. McDougall's bedroom was also located here, in a corner of the intermediate boys' dormitory. A senior girls' recreation room and a sewing room were located on the east side. There were a number of rooms along a corridor between the boys' and girls' sides, including the chapel, a guest room, the first aid room used by Sister Noella, and a parlour. Sister Gormley's office/bedroom was on this hall as well, near the eastern staircase. She testified that she usually went to bed around 10 p.m.

[95] On the top floor, the junior boys' dormitory and the senior boys' dormitory were located at the west end of the building. Brother Ed McDonald's room was inside and between these two rooms, and Brother Francis McDonald's room was at the entrance to the senior boys' dormitory, at the top of the western staircase. The junior girls' dormitory and senior girls' dormitory were at the east end of this floor. About 44 junior girls slept in the former, and the plaintiff was one of approximately 23 senior girls who slept in the latter. Ms. Henry's bedroom was inside and between the two dormitories. She said that she slept with her door open, to make sure the girls were safe.

[96] Sister Orieux's bedroom was at the top of the eastern staircase, opening onto the hallway and facing the stairs. Her room shared a common wall with the senior girls' dormitory, and had a window through which she could see into the dormitory to check what the girls were doing. She testified that at 10 p.m., which was bedtime, she made sure they were all there and accounted for, and that after they went to bed, she was required to stay in her room to be available to them. She said that she slept with her door open. She also testified that before going to bed, she would shut the fire door at the top of the stairs, which was locked from the outside. Thus, while someone could leave the girls' dormitory area to go downstairs at night, she said that no one was able to enter the area unless they had a key or they knocked. She said that the night watchman had a key to that door, but she and Ms. Henry did not.

[97] Sister Gormley and Mr. McDougall also described the fire door at the top of the girls' staircase. Ms. Henry was not asked about it.

[98] There was a corridor between the girls' and boys' sides on the top floor. At the girls' end, Sister Orieux's room, the girls' dormitories, the girls' bathroom, a staff bathroom, Sister Noella's room, and another bedroom all opened onto this hall. At the boys' end, Brother Francis McDonald's room, the boys' dormitory, the boys' bathroom and another bedroom opened onto the hall.

[99] The defence witnesses from SIRS testified that a closed door across the corridor of the top floor prevented access between the boys' and girls' sides. Mr. McDougall said he had been told it was alarmed, although he never heard the alarm. Sister Orieux testified that it could not be opened from the girls' side, and if it was opened from the boys' side, bells went off. Sister Gormley and Ms. Henry both said that it was impossible to go from the girls' side to the boys' side because of the door. Ms. Henry said it was sealed.

[100] All of the defence witnesses who had worked at SIRS testified that the building was secured at night, with the students, the child supervisors, and a night watchman inside. The night watchman in 1967-68 was Johnnie Joe, who is now deceased. Mr. McDougall recalled him being there between 10:30 p.m. and 7 a.m. each night. He and Ms. Henry testified that the watchman checked in periodically at various stations throughout the building, which included the landings going to the dormitories and the outside doors.

[101] Mr. McDougall vehemently denied having sexual intercourse with or sexually touching the plaintiff or any student at SIRS, and said he had never been accused of sexual impropriety with a female student. He also denied being present at any confrontation between a female student and Sister Noella and Sister Gormley about such an incident. He said he had never asked them to, or seen them, push a girl down the stairs.

[102] Mr. McDougall testified that he saw his role at SIRS as protecting and caring for the children, and making their lives as pleasant as possible, as they often came from difficult circumstances. He considered it more than a job, and felt he was to look after the children to the best of his ability. He agreed that he spent the nights at SIRS, as he was expected to be available for the children if they needed help.

[103] Mr. McDougall testified that his duties at SIRS involved the boys almost exclusively. While he knew a number of the girls from seeing them every day, he said he was never alone with any of them as there was a strong demarcation between the boys' and girls' sides and activities at SIRS. He said that the principal and other staff had told him that the girls' dorms on the top floor were off limits, and he had never been to that part of the building. While he had some keys for doors in the building, none of these were for doors on the girls' side. He said he had never gone through the alarmed door between the girls' and boys' sides on the top floor.

[104] Sister Gormley, Sister Orieux, and Ms. Henry, all testified that they had never seen Mr. McDougall in the area of the girls' dormitories at night.

[105] Both Mr. McDougall and Sister Orieux adamantly denied the plaintiff's allegation that they were having an affair in 1967-68. Both testified that they took their vows of chastity seriously, and honoured them.

[106] Mr. McDougall was cross-examined on his religious beliefs, and said that he remains a practising Catholic and takes his religion seriously. He agreed that the perpetrator of the assaults described by the plaintiff would be guilty of mortal sins, which could only be absolved by confession. He said that he goes to confession regularly, and firmly rejected the suggestion that he has had any need to confess sins against the plaintiff.

[107] Mr. McDougall testified that the first and only person with whom he has had sexual intercourse was his wife. She had been a member of the Sisters, and they met when she came to work at SIRS in 1968-69. They each left their Orders in 1970, and began to date after that. He said that they married in 1971, and he had intercourse for the first time then.

[108] Mr. McDougall said that after he left the Oblates, he worked for over 20 years with a graphics firm, until it closed, and thereafter as a maintenance man at a Catholic school in Vancouver. He said he felt obliged to resign from that job shortly after the commencement of this action, when he learned of the plaintiff's allegations against him. He expressed the shock, disbelief and stress he has experienced as a result of those allegations.

[109] Sister Gormley, Sister Orieux, Ms. Henry, and Ms. Johnson all testified that they had never heard any complaints about sexual abuse of the children at SIRS by Mr. McDougall or by any other staff.

[110] Historical documents entered by agreement of the parties included a letter dated March 11, 1959 from Father Bernardo, then principal of SIRS, to the Father Provinciale. In it, Father Bernardo recounts an Inspector's visit at which members of the Sechelt Reserve presented a list of complaints about SIRS. He says that one complaint hinted at a brother making improper advances to the boys. Father Bernardo describes this as "completely ridiculous", "diabolical", and not worthy of consideration. He indicates that he has total confidence in the brother and vouches for his integrity "without limit". There is nothing to suggest any further action was taken on the complaint.

[111] These documents also include a report with a list of grievances purportedly provided by the students at SIRS to representatives of Red Power, when the latter occupied SIRS in 1970, and took the children away for several days. The list includes a complaint that "three girls were taken advantage of by the principal".

[112] Only Ms. Johnson was at SIRS in both 1959 and 1970. She gave no credence to these reports. She was critical of the reliability of their sources, and reiterated that she knew nothing of staff taking advantage of the students.

[113] Ms. Henry and Sister Gormley, who were at SIRS in 1970 when Red Power came to the school, also disputed the reliability of the grievances compiled by that movement.

[114] Sister Gormley and Sister Orieux said that they did not keep records of the girls' menstrual periods. Nor did the girls have to come to them to get sanitary pads. Sister Gormley did not know where the girls got their pads. Sister Orieux testified that they were kept in a cupboard in the senior girls' dormitory.

[115] Sister Gormley and Sister Orieux both testified that they had never seen or heard of an incident in which a student fell down the stairs at SIRS. Sister Gormley specifically denied that she pushed the plaintiff down the stairs to provoke a miscarriage. She said that she would never do such a thing, as she viewed this as murder, and it was completely against her beliefs.

[116] Sister Gormley said she was not aware of any girl becoming pregnant while she was at SIRS. Had that happened, she said that she would have taken the girl to a medical doctor, and notified her parents or guardian.

[117] Sister Orieux said that Hilda Hackett never reported to her that Mr. McDougall had made her pregnant, or had sexually assaulted her. She recalled one other girl becoming pregnant at SIRS. She testified that she told the principal, and took the girl to a doctor in Sechelt. She was sent home.

[118] Much of the evidence about the plaintiff's life after she left SIRS is related to issues that I have chosen not to decide, in view of my findings about the assaults. I therefore recount only those aspects that I view as relevant to the question of whether the assaults occurred, and the integrally related issue of credibility.

[119] The plaintiff did not return to SIRS after June 1968. In September of that year, she was placed in a foster home in Campbell River to attend Grade 8. She testified that within two weeks she ran away, because the foster father tried to rape her. She said that a social worker picked her up at Church House, and placed her in a different foster home in Campbell River, where she attended school until Christmas, 1968. During this time she developed a relationship with Alvin Francis, and she became pregnant. She left school and went home to Church House. Her first son was born there on August 27, 1969.

[120] The plaintiff said that her relationship with Alvin Francis did not last, as his family did not accept her. After it ended, she met James Francis, his cousin, in 1970 and they lived in a common-law relationship until they married in 1976. She and James Francis had three children: a son born January 9, 1971, a daughter born September 18, 1972, and another son born August 12, 1979.

[121] The plaintiff testified that although her relationship with James Frances was initially happy and affectionate, in 1971 he began to physically abuse her, and be unfaithful to her. The plaintiff described frequent and severe assaults by James Francis throughout their relationship, usually associated with alcohol consumption. These included slapping her, punching her, pulling her hair, and kicking her in the face. She said she often had black eyes that prevented her from seeing for two weeks. She complained to the police several times, and once they took her to Emergency because of her injuries. She agreed that on many occasions James Francis struck fear in her heart, and this continued until 1985, when he left her for another woman.

[122] Medical records and records from the Workers Compensation Board Criminal Injury Section were entered by agreement between the parties, and confirmed the plaintiff's complaints of assaults by James Francis during their relationship.

[123] On February 27, 1989 the plaintiff submitted a claim to the Workers Compensation Board under the Criminal Injury Compensation Act for damages arising from injuries she said that she suffered during an assault by James Francis in March 1983. In her claim, she describes the assault:

[124] In August, 1989, the plaintiff wrote again to the Criminal Injury Section. This letter is somewhat difficult to read, but it appears to include this passage:

[125] The Criminal Injury Section rejected the plaintiff's claim because she had not laid criminal charges, and the adjudicator concluded that there was insufficient independent information to support her story. The plaintiff appealed that decision, alleging hidden prejudice, but she ultimately abandoned the appeal. In her final letter to the Criminal Injury Section on May 29, 1990 she wrote:

[126] At an appointment on September 24, 1991 the plaintiff's family doctor in Campbell River recorded that she complained of back pain for several years which she thought was the result of beatings from her first husband.

[127] At trial, while the plaintiff acknowledged that James Francis beat her, she denied that he had ever injured her back. She testified that her back problems were due to her fall down the stairs at SIRS. She said she had no back problems before that, and has had back pain ever since. She testified that a doctor in Tahsis took an x-ray of her back sometime between 1987 and 1990, and told her that she had a chipped bone, which she attributes to the fall at SIRS. She agreed that she did not tell this doctor, or any other health professional, that she had injured her back at SIRS.

[128] She said that it was the doctor in Tahsis who advised her to make the claim to the Workers Compensation Board Criminal Injury Section. She did not initiate it on her own. As well, she repeatedly maintained that this claim was limited to damage to her clothing from the assault, and did not relate to any physical injuries.

[129] With respect to the entry in her medical records on September 24, 1991, the plaintiff testified initially that she could not recall telling her doctor that beatings by her husband caused her back pain. She said she understood that appointment was for treatment for a kidney infection that she related to the back pain. She then denied that she had told the doctor that her back pain was due to abuse by her first husband. However, during cross-examination, she agreed that she might have said this.

[130] The plaintiff also testified to ongoing problems with her knees and ears that she attributes to the physical abuse she suffered at SIRS. No expert medical evidence was led to confirm the diagnosis and cause of these, or her back problems.

[131] When James Francis left her, the plaintiff had a brief relationship with another man in 1985. This, too, was abusive. He fractured her jaw during one assault, resulting in hospitalization and surgery.

[132] In 1987, the plaintiff met her current common-law husband, Ken Cooper. This relationship has been far more positive. She described Mr. Cooper as patient and hard working. He has never physically abused her, and she says they have a happy, affectionate, and physically satisfying union.

[133] The plaintiff's high school education was interrupted by the birth of her children, and her decision to stay at home and care for them. She said that she wanted to be a good mother, and they were her first priority. She has remained close to them and said that she enjoys a good relationship with all of them today.

[134] The plaintiff has a limited employment history. She has generally been supported by the men in her life, or been on welfare. She worked as a waitress once for a week, and as a chambermaid for several months in 1991. Since the mid-1990's, she and Mr. Cooper have operated a profitable home-based business, selling tobacco on the Hamalco Reserve.

[135] The plaintiff agreed that she has been diagnosed as an alcoholic. She acknowledged a family history of alcohol abuse. She said that she started drinking soon after she left SIRS, and she attributes her difficulties with alcohol to her experiences there. From then on, she drank regularly, except during her pregnancies. She said that her alcohol consumption was at its worst when she met Mr. Cooper in 1987, and she was drinking large amounts daily. They both managed to quit for four years, but she began drinking again, and now tends to drink for two or three days every two to three weeks, when she is feeling depressed.

[136] Three experts provided testimony relevant to whether the assaults took place, and the related issue of credibility. Dr. Cronhelm testified for the defence as an expert in obstetrics and gynecology. Mr. Stewart, a clinical therapist, testified for the plaintiff as an expert in the emotional and behavioural effects of sexual and emotional abuse. Dr. Sivertz testified for the defence as an expert in psychiatry.

[137] Dr. Cronhelm testified that without contemporaneous medical records, there is no means of confirming whether the plaintiff became pregnant while she was at SIRS. He said that the temporary cessation of menstruation she described might have been due to pregnancy, but could also have been caused by the stress of being away from home, or stress arising from being sexually assaulted.

[138] He said that if the plaintiff had fallen down a flight of stairs when she was 14 to 20 weeks pregnant, it was possible though quite unlikely that a miscarriage would result. He said that if she had been close to 20 weeks gestation, and had received a direct blow to the abdomen in the fall, this could have initiated a miscarriage, but he believed that would be unusual. If her pregnancy was less developed, he said it was unlikely that even a severe fall would cause a miscarriage, since the fetus would be better protected by the pelvic bones at an earlier stage.

[139] Dr. Cronhelm said that an immediate miscarriage of a 14 to 20 week pregnancy due to a fall would produce a medical emergency, with passage of large amounts of blood and tissue. He testified that it would be more likely to develop symptoms of a miscarriage from a fall over several days, with progressive pain and bleeding. In either case, the woman would ultimately have to be brought to hospital for a surgical procedure to remove the remnants of the placenta. Such surgery could only be avoided if the pregnancy was in the early stages of less than eight weeks gestation.

[140] Dr. Cronhelm was asked to comment on a hypothetical scenario of a woman who had not menstruated for several months falling downstairs, complaining of immediate stomach cramps and bleeding, being confined to bed for two days, and then being taken to hospital, where she is told she has stomach flu and is given no treatment. It was his view that the most likely explanation for this scenario would not be related to pregnancy. It would more likely be due to the fact that she was about to recommence her menses after several months of missing them due to stress, and the fall precipitated this, resulting in menstrual bleeding and cramps for a few days.

[141] Mr. Stewart assessed the plaintiff on January 25, 2001. He interviewed her for two to three hours, and also administered the Personality Assessment Inventory ("PAI") to her. He testified that the PAI assesses personality patterns and symptoms indicative of maladjustment.

[142] Mr. Stewart said that the plaintiff's primary profile on the PAI showed a person with a history of drinking problems, who is experiencing prominent stress and anxiety and uses alcohol to help deal with that. He said that secondary significant features demonstrated by the plaintiff on the PAI were depression, low self-esteem, and a feeling of powerlessness. Her scores also showed some hostility and bitterness, social detachment, distrust, a lack of purpose to life, and an indication that she had suffered a traumatic event in the past. Mr. Stewart said that the PAI did not assist in identifying that event, but that it could be a rape or some other form of sexual abuse.

[143] Mr. Stewart testified that the emotional and behavioural characteristics that the plaintiff described during his interview with her were consistent with her PAI results, and he concluded that they seemed to be coincident with her experiences at SIRS. He also said that the only traumatic event she reported to him that would account for her high score on the traumatic stress scale of the PAI, and her symptoms, was her sexual abuse at SIRS.

[144] Mr. Stewart testified that a history of sexual abuse as a child may be a contributing factor to a number of personality features. These include alcohol abuse, academic difficulties, and difficulty in forming healthy and trusting relationships as an adult. He said that victims of child sexual abuse also tend to show increased sexualized behaviour, and post-traumatic stress disorder. He believed that the plaintiff exhibited a number of these features.

[145] On cross-examination, Mr. Stewart agreed that the presence of a certain constellation of symptoms does not conclusively establish that sexual abuse occurred. He also acknowledged that while sexual abuse as a child tends to produce a number of the characteristics that he identified in the plaintiff, some of these can be caused by other factors as well. For example, he agreed that genetics plays a role in alcoholism, and physical or emotional abuse may cause anxiety, stress, and depression.

[146] Mr. Stewart acknowledged that his interview with the plaintiff was self-reporting. He asked her open-ended questions, and accepted her answers at face value. He did not do any independent investigation to confirm the information that she gave him.

[147] Mr. Stewart said that he gave the plaintiff time to answer his questions, and that he recorded her responses accurately. He quoted a number of her statements in his report, and I have referred to several of those earlier in these Reasons. Mr. Stewart agreed that when he asked her about other problems in her life, she only mentioned her mother's death in 1996. She did not tell him that she had been in a physically abusive marriage for 15 years, or provide details of that abuse. Nor did she tell him that her father had committed suicide when she was 10. When he asked her about other sexual abuse, she did not tell him that a foster father had tried to rape her in 1968.

[148] Mr. Stewart agreed that when he asked the plaintiff these questions, he would have expected her to relate these events. He acknowledged that each of them represented a potentially serious trauma, and in particular that her abusive marriage to James Francis was as likely to be the traumatic event profiled by the PAI as her reported experiences at SIRS. Mr. Stewart said that he attributed her results to the latter only because he was unaware of the former:

[149] Dr. Sivertz interviewed the plaintiff in December, 2000. She also reviewed a number of the documents produced in the course of discovery procedures. She identified many of the same personality features in the plaintiff as those described by Mr. Stewart. Her primary diagnosis was alcohol dependence. Dr. Sivertz also felt that the plaintiff exhibited avoidant personality traits, difficulties with interpersonal interactions, shame, anxiety, low self-esteem, helplessness, some depression, and a sense of having been treated unfairly.

[150] Unlike Mr. Stewart, Dr. Sivertz did not link these features solely to the plaintiff's reported sexual abuse at SIRS, but saw them as multi-factorial, resulting from the combination of biological, social, and psychological factors in the plaintiff's background. It was her view that the primary contributing factor to plaintiff's alcohol dependency was the biological predisposition to alcohol abuse in her family of origin. Dr. Sivertz agreed that sexual assault would have a significant effect in shaping the personality of an adolescent female. However, she believed that domestic violence in the plaintiff's family as a child, her father's suicide, her dislocation from family on being sent to SIRS, the experiences she described there, the later separations and sexual assault related to her time in foster care, and her abusive relationships, could all be contributing factors to her alcoholism and other personality features, and to her difficulties in a comfortable adult adjustment to life. She described the plaintiff as presently functioning at a level of mild to moderate impairment, and said her ability to function slips when she is abusing alcohol.

[151] Both Mr. Stewart and Dr. Sivertz agreed that fear has a negative effect on one's ability to recall details of a traumatic event. As well, both testified that a victim of sexual assault may be inconsistent in recounting the precise dates and frequency with which it occurred. Dr. Sivertz said that she would expect a victim's memory to be clearer if the assaults were frequent.

[152] The difficulties presented in establishing the facts in a case alleging historical sexual assault are abundantly clear. The passage of time brings difficulties in recollection, evidentiary challenges, and problems in ascertaining with accuracy what occurred so long ago.

[153] In this case, the key events took place over 30 years ago. Several witnesses who might have shed light on them are dead, or no longer available to testify for other reasons. Those witnesses who did testify were asked to dredge up memories which had been dormant or suppressed for many years. Documentary evidence was incomplete, having been destroyed or lost.

[154] These difficulties, however, do not affect the burden of proof. The plaintiff must establish on a balance of probabilities that she was sexually assaulted. While it is the civil standard of proof that applies, the law is clear that in cases such as this, involving serious allegations with grave consequences, that standard is somewhat flexible. The court is justified in imposing a higher degree of probability which is "commensurate with the occasion": Blackwater v. Plint (2001), 93 B.C.L.R. (3d) 228 (S.C.) at paras. 10-12; B.(M.) v. British Columbia (2001), 87 B.C.L.R. (3d) 12 (C.A.) at para. 25.

[155] As is not uncommon in such cases, the plaintiff and her assailant were the only people present during the assaults she alleges. Unlike the situation in Blackwater v. Plint, supra, the alleged perpetrator here has not been convicted of related criminal charges. Nor is this a case in which he is deceased or otherwise unavailable, as was the situation in E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia and Matthew Williams, 2001 BCSC 1783. Here, the alleged assailant, Mr. McDougall, gave evidence and vehemently denied the assaults.

[156] The issue before me is therefore one of stark credibility. In considering this key issue, I am guided by the comments of O'Halloran J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at pp. 356-7:

[157] I am also aware that it is necessary to assess both the credibility and the reliability of each witness. The distinction between those two concepts was set in out R. v. S.(W.) (1994), 90 C.C.C. (3d) 242 (Ont. C.A.), leave to appeal to S.C.C. refused 93 C.C.C. (3d) vi, at p. 250:

[158] As well, in considering credibility, I assess the evidence of the plaintiff keeping in the mind the fact that she was only 14 when the events in question took place. I am mindful of the comments of McLachlin J., as she then was, in R. v. W.(R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.) at p. 144:

[159] I have also found the comments of Rowles J.A. in R. v. B. (R.W.) (1993), 24 B.C.A.C. 1 at paras. 28-29 useful in considering the effect of inconsistencies on the credibility of critical witnesses:

[160] Turning to the credibility of the witnesses, the plaintiff gave her evidence in a quiet and deliberate manner. She was extensively cross-examined with respect to prior statements she had made in her interrogatories, at her examination for discovery, and in dealings with Mr. Stewart and health care professionals. It was not always clear to me that she understood the nuances of this process. At times, when confronted with a prior inconsistent statement, she simply reiterated her evidence at trial, rather than dealing with the accuracy of her earlier statement. On other occasions, she appeared more concerned with determining where the questions were leading than with answering them.

[161] However, even allowing for some confusion on her part, I find that there were many internal inconsistencies in the plaintiff's testimony. I appreciate that the passage of time has led to difficulties in recollection, but one would expect that to produce responses such as "I don't recall" or "I don't know". The plaintiff seldom gave these responses, and instead, provided diverse accounts of many events. Disparities were apparent in her evidence about her departure for SIRS, her English language skills when she arrived there, the communications she was allowed to have with her mother, the frequency and dates of the sexual assaults she described, the disclosure of those assaults to the Sisters, the confrontation on the stairs, and her resulting medical treatment. The plaintiff also gave inconsistent statements about the cause of the medical problems with her back and ears that she attributes to events at SIRS.

[162] She frequently sought to explain these inconsistencies by saying that her previous statements were erroneously recorded by Mr. Stewart, the reporter at her examination for discovery, and others. I am unable to accept that. It is not plausible that so many different people made repeated mistakes in recording her statements. I am satisfied that in the case of Mr. Stewart, he took care to accurately record her statements to him. With respect to her answers at discovery, I accept the transcript as the official record pursuant to s. 3.01 of the Official Reporters Regulation, B.C. Reg. 222/84.

[163] I have considered the evidence of Mr. Stewart and Dr. Sivertz that victims of sexual assault may be inconsistent in recounting the precise details of how it occurred, and that fear may interfere with their ability to recall traumatic events. However, I am unable to accept that this offers a complete explanation for the numerous inconsistencies in the plaintiff's testimony, particularly in areas unrelated to the sexual assaults.

[164] Of particular concern are the number of inconsistent statements the plaintiff has given under oath. Having examined her answers to interrogatories, at discovery, and in giving evidence at trial, I must conclude that at times the plaintiff has failed to grasp the importance of the oath.

[165] Turning to the credibility of the defence witnesses, there was nothing to suggest there had been any consultation between them in preparing their evidence. Each of them has lived independently of the others for years since leaving SIRS. Mr. McDougall was cross-examined about the steps taken to prepare him for trial, and it was clear that counsel had taken care to ensure that he was unaware of the evidence of the other defence witnesses until after he had testified.

[166] Mr. McDougall gave his evidence in a subdued and sober manner. I found him direct and frank in recounting events. It is difficult to find any internal inconsistencies in his evidence. I also found him convincing in relating his shock when he heard about the plaintiff's allegations against him, and the devastating affect that they have had on him.

[167] Mr. McDougall was asked about the role that his religion plays in his life, and about his sexual views and history. The way in which he dealt with those questions left an impression of decorum and even naivety which emanate, at least in part, from a genuine commitment to the tenets of his faith. I am well aware that one need not go far in reviewing recent authorities to discern that adherence to religious faith is no bar to the commission of sexual assault. Nevertheless, in Mr. McDougall's particular case, I was persuaded that his belief in his religion is sincere and informs his daily life, and his answers to those questions contributed to the context in which I assess his credibility.

[168] I found Sister Gormley and Sister Orieux to be pleasant and sincere witnesses. However, I formed the impression that both of them were inclined to recall life at SIRS in overly rosy terms. I found Sister Gormley at times unnecessarily dismissive or confrontational during cross-examination, and for that reason I felt Sister Orieux's recollections were more reliable.

[169] I found Ms. Henry and Ms. Johnson to be particularly reliable and objective witnesses. Neither had any reason to favour the plaintiff or the defendants. Ms. Johnson was at SIRS for many years, and clearly had intimate knowledge of events there. Ms. Henry, who was a graduate of the residential school system herself, gave a straightforward and more balanced account of life at SIRS. Her evidence was somewhat limited, however, by the fact that she was largely occupied with the junior girls who were in her charge, and she had little to do with the senior girls like the plaintiff.

[170] It is not strictly necessary for me to make precise findings of fact with respect to the events that occurred at SIRS in 1967-68 other than the sexual assaults alleged. However, those events do provide some context for assessing the evidence with respect to the assaults, and I make the following observations.

[171] The evidence of the plaintiff and the defence witnesses about life at SIRS was dramatically different. At times, it was difficult to believe that they were describing the same institution.

[172] I believe that all of the defence witnesses were inclined to recall life at SIRS in overly positive terms. However, inconsistencies among their accounts suggested that the school was not problem-free, as portrayed by Sister Gormley and Sister Orieux. For example, I find that the letter of January 8, 1968 setting out the failure of the plaintiff and other students to return after Christmas, and the quarterly return for January 1 to March 31, 1968, establish that children did run away from SIRS. I find that for some period of time, the children received meals that were inferior to the food eaten by the staff. I find there were some conflicts among the staff, such as those described by Ms. Henry with Father Power. As well, the descriptions given of Father Power and Sister Noella suggest to me that both were strict with the children, who likely interpreted their disciplinary actions in more negative terms than did the staff.

[173] I found it significant that Mr. McDougall was the only staff member to admit that he physically punished some students at SIRS. This, to my mind, enhanced his credibility as it was an admission detrimental to his interest which was unnecessary, in the sense that his silence on this point would not have been contradicted by the other SIRS witnesses. I find that his evidence, as well as the documents I have quoted in paragraphs [56] and [58], give some credence to the plaintiff's claim that she was physically punished at SIRS.

[174] However, if the defence witnesses were inclined to view SIRS in an overly positive light, I find that the plaintiff was predisposed to view everything connected with SIRS in negative terms, and that this has led her to exaggerate her bad experiences there. I have no doubt that her abrupt and unexpected departure for SIRS represented a traumatic removal to an arbitrary and oppressive new environment. I accept that her year there was characterized by fear and loneliness. Her isolation was confirmed to some extent by the fact that none of the defence witnesses even has a significant recollection of her. I accept that, quite apart from any physical and sexual abuse, her year at SIRS was a profoundly negative experience for her.

[175] I do not discount the possibility that the plaintiff may have been physically punished on occasion at SIRS, but nor do I accept that this happened with the regularity and harshness she described. For example, she testified that much of that punishment was connected to her failure to perform laundry chores properly. However, the preponderance of the evidence, and particularly Ms. Johnson's testimony, convinces me that the plaintiff and the other girls at the school were not required to do such chores, and that the punishment she described in that connection did not occur. I also find it highly unlikely that she was force-fed every other day, as she alleges.

[176] The lack of medical evidence to support any causal relationship between the physical abuse the plaintiff described at SIRS and her complaints of resulting injuries to her ears and knees also leads me to doubt the reliability of her accounts of that abuse.

[177] I find as well that the plaintiff is clearly wrong in her recollection of some of the features of her year at SIRS. Her confusion over the names of Mother Theresa (Sister Gormley) and Sister Marie (Orieux) may be understandable after so many years. However, I find it remarkable that the plaintiff has no recollection of any First Nations staff at SIRS, and particularly of Ms. Henry, whose bedroom was adjacent to the dormitory where the plaintiff slept, and whom the plaintiff would have seen on a daily basis. Similarly, it is difficult to understand why the plaintiff has no recollection of the presence of over 40 junior girls, who slept in the dormitory next to hers for the year.

[178] I also find that the plaintiff is wrong in her recollection that she ran away from SIRS for only one day before Christmas. I accept that the letter of January 8, 1968 and the accompanying quarterly report establish that she failed to return to SIRS after Christmas, and was absent from the school for over 30 days during the quarter between January and March 1968. It is difficult to understand the plaintiff's failure to recall this lengthy absence, and the reason for it.

[179] As well, I find the plaintiff's evidence that Mr. McDougall and Sister Marie (Orieux) were having an affair improbable. I found their denials of such a relationship convincing, and supported by the balance of the evidence as to the separation of genders at SIRS, and the physical layout of the building.

[180] Ultimately, the diverse accounts of life at SIRS, and my observations on credibility, lead me to conclude that the truth lies somewhere in between. While I do not discount the plaintiff's account entirely, in weighing the balance of her evidence, I have in mind the fact that her recollections of SIRS are clearly erroneous in some respects, and exaggerated in others.

[181] I acknowledge that the plaintiff's evidence about the sexual assaults themselves, in terms of their location, and the manner in which they took place, has remained consistent. She said that each time Mr. McDougall came through swinging doors from the boys' side on the top floor, and accosted her in the hallway on the girls' side. He then forcefully took her down two flights of stairs to the recreation room where he raped her. After each incident, she said she made her way back upstairs to her dormitory.

[182] However, I find that the physical layout of SIRS, and the proximity of other staff and students, make it improbable that Mr. McDougall could have carried out the assaults which the plaintiff describes.

[183] I am satisfied that that there was no means by which Mr. McDougall could regularly access the girls' side from the boys' side on the top floor, as the plaintiff describes, without detection. I find that the plaintiff is in error in her recollection that swinging doors separated the two sides. I accept the evidence of the defence witnesses, supported by plans of the top floor, that a closed and alarmed door separated the boys' and girls' sides. I also find that such a door would be consistent with the uniform evidence as to the SIRS policy of separating the girls' and boys' sleeping and living areas due to concerns of propriety.

[184] I am satisfied as well that there was a fire door at the top of the girls' stairs that was closed each night and locked from the inside. While I appreciate Ms. Henry was not asked about this door, Sister Gormley, Sister Orieux and Mr. McDougall all remembered it, and I rely particularly on the evidence of Sister Orieux, who said she shut that door each night before she went to bed.

[185] I find that the presence of these doors at each end of the hall on the girls' side of the top floor would make it virtually impossible for Mr. McDougall to gain access to the hallway where the plaintiff said he accosted her regularly. As well, I find that the locked door at the top of the stairs would make it impossible for the plaintiff to regain access to her dormitory after the assaults without knocking.

[186] Even if this area of the hallway was not secure, I find it most unlikely that Mr. McDougall could have gained access to it and lurked there with the frequency described by the plaintiff, without being detected. To accomplish that, he would have had to leave his own bedroom, make his way through a dormitory with 25 boys in it, and then either proceed upstairs by the west staircase past the bedrooms of Brother Ed McDonald and Brother Francis McDonald, or alternatively, walk to the east side of the building past the bedrooms of Sister Noella and Sister Gormley, and take the stairs on the girls' side to the top floor. In either case, he would have arrived to wait for the plaintiff and accost her in the hallway outside the two girls' dormitories, which housed over 60 girls and Ms. Henry, and outside Sister Marie's room, where she slept with her door open. As well, I accept that a night watchman routinely patrolled the building.

[187] These factors make it extremely unlikely that, even if he gained access to the girls' side on the top floor, Mr. McDougall would escape detection if he was regularly waiting for the plaintiff there at night. If detected, I have no doubt that his presence on the girls' side would have been treated as unusual, and would not have been condoned.

[188] Similar considerations apply in assessing the likelihood that Mr. McDougall could repeatedly seize the plaintiff forcibly, take her down two flights of stairs, and rape her, without detection.

[189] I conclude that the physical features of the building, as well as the presence of other staff and students in close proximity to the areas of the assaults described by the plaintiff, combine to make her account of the assaults improbable.

[190] The plaintiff says that the fact that she became pregnant while she was at SIRS confirms that she was sexually assaulted. However, the unchallenged evidence of Dr. Cronhelm leads me to conclude that the plaintiff has failed to establish that she was pregnant. Based on his testimony, I find that if she suffered amenorrhea while she was at SIRS, this could have been caused by the stress of being away from home. His evidence also satisfies me that the plaintiff's description of her physical reaction to the fall down the stairs, and the medical treatment she received after it, is not consistent with termination of a pregnancy.

[191] Nor can I find support for the plaintiff's contention that her back problems confirm that she was pushed down the stairs at SIRS. Not only is there no medical evidence to support this proposition, but the medical history available strongly supports a conclusion that the origins of the plaintiff's back pain lie in the physical abuse she suffered at the hands of James Francis. I found the plaintiff particularly defensive in trying to explain away the links between Mr. Francis and her back pain in her Workers Compensation Criminal Injury Section claim, and other medical records.

[192] The plaintiff argues that both Mr. Stewart and Dr. Sivertz identified personality and behavioural features in her which are characteristic of victims of sexual assaults. She says their opinions therefore support a finding that she was sexually assaulted at SIRS.

[193] I do not agree that this expert evidence leads to that conclusion. I found Mr. Stewart's views of limited assistance, as he had not received all relevant information from the plaintiff. Notably, he believed that the experiences she described at SIRS were the only traumatic events in her past. He was unaware of her abusive relationship with James Francis, and conceded that it could equally account for the characteristics he identified in the plaintiff.

[194] Dr. Sivertz did acknowledge that sexual assault would have a significant effect in shaping the personality of an adolescent female, but it was her opinion that the characteristics she perceived in the plaintiff were the result of multi-factorial influences in her life. She did not attribute them solely to the plaintiff's experiences at SIRS.

[195] In summary, having considered the credibility of the witnesses, the physical features of SIRS, and the expert evidence, I conclude that the plaintiff has failed to establish on a balance of probabilities that she was sexually assaulted by Mr. McDougall at SIRS.

[196] During argument, for the first time, the plaintiff raised the prospect that the sexual assaults she described at SIRS were perpetrated by someone other than Mr. McDougall. This theory was advanced on two main points. First, she said that her account of the sexual assaults themselves remains consistent and credible. Second, she pointed out that a finite group of people had access to SIRS at night, and all of them were under the control of the defendants. She therefore argued that it was open to find that she had been sexually assaulted at SIRS by a person who was unknown, but for whom the defendants must take responsibility.

[197] In my view, it would be inappropriate for me to consider this theory at this late stage of the action. The Statement of Claim clearly named Brother McDougall as the person who committed the sexual assaults on the plaintiff. It did not raise any suggestion of some other perpetrator. Throughout the discovery process and trial, the plaintiff's case proceeded on the basis that Brother McDougall perpetrated the assaults on her. During her evidence, she described him physically, and showed no hesitation about his identity. Nor was the possibility of an alternative perpetrator put to her. With this background, the defendants understandably conducted their case on the basis that Mr. McDougall was the alleged perpetrator, and said that they have had no opportunity to lead evidence to rebut the suggestion of some other assailant. Given these circumstances, I decline to consider the possibility of an unknown perpetrator.

[198] A considerable amount of trial time was necessarily taken up with issues of liability and damages that would have flowed from a finding that the plaintiff was sexually assaulted at SIRS. During argument, all parties submitted that, even if I found that these assaults did not take place, it would be useful to have a determination of those remaining issues on a hypothetical basis. They pointed out that there are a number of outstanding actions brought by other students from SIRS, and that a determination on issues such as vicarious liability, negligence, and damages in this case might be of benefit in resolving these other claims.

[199] In Caplan Bldr. Ltd. v. Royal Bank (1988), 25 B.C.L.R. (2d) 335 (S.C.) Bouck J. considered a request to assess damages following a finding of no liability. He stated that this was a matter of judicial discretion, and would be done only in exceptional cases. He set out several factors to consider in exercising that discretion, one of which was whether the action was dismissed predominantly on findings of fact against the plaintiff. In such a case he said that an assessment of damages is largely academic and should not be pursued, since it is unlikely a higher court will reverse such a finding. I find those comments instructive here.

[200] I can appreciate that a judgment on the remaining issues in this case might provide precedential value for other claims. However, I believe that any potential benefit from such a decision could be outweighed by the potential harm of deciding these issues on hypothetical facts, and later encountering difficulties in trying to apply the decision to a case that has proceeded on a different, and unanticipated, factual footing. I therefore decline to deal with them.

[201] The plaintiff's claim is dismissed. The parties may arrange a time to address the matter of costs if that is required.

"K.E. Neilson, J."
The Honourable Madam Justice K.E. Neilson