Sexual Abuse Claims Blog
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Nova Scotia has proclaimed a new Limitation of Actions Act. That is the law that establishes the statute of limitation period (how long a plaintiff has to sue) for various claims.

There are a number of important changes in the new statute of limitations. Specifically it shortens the limitation period for many claims to two years.

Court still has discretion to extend limitation periods

Nova Scotia used to be unique in that our Limitation of Actions act had a “saving” provision. Even if a plaintiff missed a limitation period the court had discretion to extend the limitation period for up to four additional years if the plaintiff was able to show that there was no prejudice to the defendant.

In the new version of the Limitation of Actions Act the court still has discretion to extend limitations period. However the discretion has been shortened to a maximum of two years after the expiry of the limitation.

This discretion only exists for personal injury claims. So if you have a contract claim (or any other claim that isn’t for personal injuries) and you miss the limitation period you are out of luck.

Therefore, as of September 1, 2015 anyone who wants to file a claim for compensation as a result of personal injuries has two years to file their lawsuit or, in some cases, a maximum of four years (the two year limitation period included in the legislation plus a possible two year extension).

No Limitation Period for Sexual Assault Victims

The most important change for my clients who have been victims of sexual assault is the fact that Nova Scotia has eliminated the limitation period for claims based on sexual assault, domestic violence and assaults involving anyone who is financially, emotionally or physically dependant on another person.

New Limitation Act is retroactive

Another important change is that the new limitation period has been made retroactive for sexual assault victims.

Some people know it is not uncommon for victims of sexual abuse to come forward decades after they were assaulted. In some cases survivors have missed limitation periods because the time to file a law suit ran out before they had the strength and courage to be able to come forward to file a claim.

Nova Scotia’s new legislation protects the rights of innocent sexual assault victims and provides them the opportunity to get access to justice.

If you are looking for more information about how Nova Scotia’s new Limitation of Actions Act will affect your legal rights you can contact me for a free consultation.

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It has been suggested that Ralph Rowe is one of Canada’s most prolific pedophiles. Rowe was an Anglican Priest and Scoutmaster. He was also a pilot and he flew to 20 remote First Nations communities in Northern Ontario and Manitoba. Rowe would lead church services, organize youth group outings and scout camping trips where he used his position of trust and authority to prey on children.

Controversial deal

In 1994 Ralph Rowe pleaded guilty to 39 sex abuse charges. He was sentenced to 6 years. But part of the plea bargain that resulted in Rowe’s guilty plea involved an agreement that Rowe would not be sentenced to further prison time for similar convictions.

Of course, there were other victims out there. Rowe was convicted again in 2005, 2009 and 2012 resulting in more than 60 convictions.

Rowe served just 5 years of a 6 year sentence even though he has been convicted of abusing more than 60 children and RCMP believe he has abused hundreds more. Rowe is now free and living in British Columbia, where he is able to carry on despite having destroyed hundreds of lives.

I wrote about the claims against Rowe back in 2012: Another former Boy Scout leader charged with sexual abuse.

I have been representing survivors of childhood abuse for almost 25 years so I have seen first hand the kind of devastating effects that histocial abuse can cause to victims and their families.

Documentary provides healing

Survivors Rowe

Now a new documentary, Survivors Rowe provides a look at the life of the estimated 500 victims who were sexually abused by Rowe when he was a priest and scout leader in First Nations communities in the 1970’s and 1980’s.

Director Daniel Roher hopes that the movie will help survivors with their healing. One of Rowe’s victims, Jason Anderson, said that he hoped the new documentary will help people understand why so many men of his generation have turned to drugs and alcohol.

Survivors Rowe premiered at the Hot Docs Film Festival in Toronto this month. Hopefully the documentary will be available for a wider distribution in the near future so we will be able to see it here in Halifax and in other parts of Canada.

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Burden of proof

A recent decision from the Supreme Court of Nova Scotia provides a clear example of the differences between the burden of proof in criminal charges as opposed to civil compensation claims and how that can affect victims of sexual assault.

Her Majesty the Queen v. A.L. is a decision of Justice J. Arnold. There is a publication ban on the identities of the parties so the summary of the information is, by necessity, somewhat vague.

Basically the alleged victim C.S. claimed that when she was 10 years old her mother started a relationship with A.L. A.L was in his late 40’s and was a successful businessman. C.S. and her mother eventually moved into A.L.’s house. C.S testified that, after moving into a A.L.’s home, he began to physically and sexual abuse her.

The court heard detailed testimony regarding the nature and location of the assaults.

The accused A.L. testified in his own defence and denied all of the allegations.

Arnold J. acquitted A.L. of all charges.

What was interesting to me as someone who represents victims of sexual abuse in civil compensation claims was the discussion about the burden of proof. Justice Arnold provided a clear explamation on the presumption of innocence and the burden of proof in criminal matters.

What is proof beyond reasonable doubt?

In criminal matters the Crown must prove its case beyond a reasonable doubt.

After referencing the Supreme Court of Canada’s analysis of the burden of proof in criminal matters Arnold J. stated, at paragraph 253:

“It is therefore not for a trier of fact to simply choose which version of the offence that it believes. The trier of fact must consider all of the evidence. In this case, I have to decide if I am satisfied beyond a reasonable doubt that A.L. committed the various crimes against C.S. over the time period she states the offences happened.”

Justice Arnold went on, at paragraph 254:

“In a case such as this, having heard the testimony of all witnesses, it is not necessarily difficult to achieve the civil standard “balance of probabilities”; however, probability in a criminal case is not the test. If a Judge in deciding any criminal matter determines only, “I think he’s probably guilty” and then registers a conviction, that decision will be wrong in law. Probability is never enough in a criminal matter. The standard in a criminal matter is that the Crown must prove the guilt of a accused person, in this case A.L., beyond a reasonable doubt- which lies somewhere b between probability and absolute certainty, but closer to absolute certainty.”

In acquitting A.L. Justice Arnold highlighted the difference in the burden of proof between civil compensation claims and criminal charges. At paragraph 265 he said:

“As I stated initially, if I was dealing with the civil standard of a balance of probabilities, I might find in favour of C.S. Should she pursue this matter civilly she might end up with a very different result then will be found by applying the criminal standard.”

Justice Arnold has pointed out the significant difference for sexual abuse survivors between criminal proceedings and civil compensation claims.

Proof on the balance of probabilities

In this video I explain the differences between the burden of proof in personal injury cases and in criminal cases.



In a civil compensation claim you only have to tip the scales of evidence just slightly in your favour. In other words, just slightly beyond the 50% mark.

That is what is known as proof on the balance of probabilities (the test applied in civil law suits) as opposed to proof beyond reasonable doubt (the test that is applied in criminal proceedings).

This is a sad and unfortunate result for C.S. who, based on the evidence presented at trial suffered a very difficult life and has had significant problems as a result.

A.L. was not convicted of the criminal charges brought against him. But one hopes that C.S. will consider all of the options available to her.

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Jian Ghomeshi criminal charges

There are few Canadians that haven’t heard about the sexual assault allegations being made against former CBC host Jian Ghomeshi. Two weeks ago Ghomeshi was charged with four counts of sexual assault and one count of physical assault. To date nine women have come forward stating they were victims of sexual or physical assault by Ghomeshi. Some of the allegations date back a decade or more.

Bill Cosby facing sex assault allegations but no criminal charges

South of the border about 20 women have come forward claiming that they were sexually assaulted by Bill Cosby.

Cosby has faced allegation of sexual assault in the past. In 2005 a Canadian woman told Canadian Police she had visited Cosby at his Philadelphia mansion. Cosby gave her medication which she said made her dizzy and pass out. She claimed when she woke up her bra was undone and her clothes were in disarray. At the time, Police found “insufficient credible and admissible evidence” to support criminal charges.

This week prosecutors in California decided not to lay criminal charges against Cosby based on allegations he he sexually assaulted a 15 year old girl.

So why is Jian Ghomeshi facing criminal charges in Canada while Bill Cosby is unlikely to face charges anywhere in the United States?

These two cases highlight the difference in the laws (both criminal and civil) relating to sexual assault.

American Statue of Limitations on criminal charges

A “Statute of Limitation” is a law that sets a time limit on how much time one has to file a law suit or press criminal charges.

In the United States there are statutes of limitations for most criminal charges. In other words, if a sexual assault victim does not swear out a criminal complaint within a certain period of time after the assault the ability to lay criminal charges is barred.

For example, under Nevada law sexual assault victims must lay a charge within 4 years of the assault. In New York sexual assault charges must be laid within 5 years of the assault. In California, where the most recent allegations arise, the time limit for felony sex crimes in 1974 was 3 years from the date of the offence.

In other words, if the victim was 15 years old, she had to go to police to lay charges before she turned 18 years old.

Canada has no statute of limitations on serious criminal charges.

On the other hand, in Canada, there is no time limit for filing charges of a serious criminal nature. So charges of serious sexual assault have no statute of limitations.

As a result, Ghomeshi is now facing sexual assault charges for acts alleged to have happened almost ten years ago.

Difference for civil suits for compensation

There is also a big difference in the laws relating to civil suits for compensation for harms suffered as a result of sexual assault.

In the United States, like criminal charges, civil law suits for sexual assault have specific and sometimes very short statutes of limitations. So if a sexual assault victim wants to pursue their abuser (or the institution that employed the abuser) for compensation they are not able to do so unless they bring forward their claim within a few years of the assault.

Time limits on claims unfair to abuse survivors

This can be problematic for many victims. For people who have been subjected to severe sexual assault the psychological consequences can be devastating. Sexual assault victims may simply be psychologically incapable of filing a civil suit as a result of the harm they suffered because of the sexual assault.

Supreme Court of Canada changed the rules for abuse survivors

In Canada, the laws relating to filing sexual abuse compensation claims changed dramatically as a result of a 1992 court decision known as M(K) v. M(H).

In that case the Supreme Court of Canada ruled the time limit for filing a civil suit did not begin to run until the sexual assault victim discovered the connection between the assault and the harms they experienced later in life.

The Supreme Court of Canada and the Canadian Criminal Code recognize that survivors of sexual assault can feel a paralyzing sense of shame and embarrassment. Sometimes the assaults create such a powerful lack of trust that they are fearful of going to the police or talking to a lawyer.

In many cases survivors of sexual abuse suffer serious psychological problems that effectively disable them. Survivors may not realize that the problems they are suffering later in life (alcoholism, depression, problems with interpersonal relationships, anxiety, and post-traumatic stress) are connected to sexual assaults they experienced earlier in their life.

Since the M(K) v. M(H) case, most provinces in Canada have changed their Limitations of Actions Acts to allow victims to sue for compensation for sexual abuse years (and sometimes decades) after the assault occurred.

Most provinces have no limitation period for sexual assault claims. Some provinces apply the “discoverability rule” as described in the M(K) v. M(H) case.

Nova Scotia to change Statute of Limitations for sexual assault claims

Nova Scotia is currently looking at changing its Limitations of Action Act to eliminate all limitation periods for sexual assault compensation claims.

As an advocate for surviors of childhood sexual abuse I fully support the proposed changes to Nova Scotia’s Limitation of Actions Act. But the changes may not go far enough.

Some survivors want the proposed legislation to be made retroactive.

The proposed limitation period, when it is proclaimed into effect, will apply to anyone who brings forward a claim after the new law is in place.

But what about sexual abuse survivors who have already come forward and may have had their claims statute barred?

If the province of Nova Scotia is recognizing that there shouldn’t be a time limit on when sexual abuse survivors can file their claim, shouldn’t that apply to all sexual abuse survivors?

What do you think?

Breaking the Silence

Many survivors suffer in silence thinking that they are the only one who was victimized by their abuser. In many cases when one survivor has the courage to break their silence and come forward to lay criminal chargers or file a civil suit it sheds light on the abusers activities and other victims, who thought they were alone, take courage and are able to come forward to seek accountability.

Sexual assault survivors often carry a crushing guilt throughout their lives blaming themselves for what happened to them. Reaching out to talk to someone; be it a friend, a family member, a health care professional, a police officer, or a lawyer, is for many survivors the first and hardest step in their healing journey.
Continue reading →

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Dejaeger finally convicted

There is good news for sexual abuse victims of former oblate priest Eric Dejaeger. He was found guilty today on 24 of the 68 charges he was facing in Iqaluit.

The priest pleaded guilty to eight sexual abuse charges last November. So Dejaeger will face sentencing on 32 convictions sometime early next year.

Some charges dismissed

Unfortunately, some of the children who claimed that he assualted them did not receive justice. Dejaeger was not convicted of all of the churches due to concerns the presiding judge had about the evidence presented by some of his alleged victims.

Justice Robert Kilpatrick said:

“The quantity and quality of the evidence available to the court in this case has been substantially weakened by the passage of time. The reliability of the Crowns evidence on many counts is suspect. This is reflected by the results of this trial.”

Delay caused by abuser

The unfortunate fact is that one of the reasons for the extended delay in this case was due, in great part, to the fact that Dejaeger fled Canada and hid in Europe for more than two decades.

You can read more of the details in my article: Nowhere to hide: Internet helps bring sexual abuser to justice.

Dejaeger pleaded guilty to sexual abuse charges in Nunavut for sexual assaults that happened between 1982 and 1989. He pleaded guilty in 1990 and was released from prison in 1991.

In 1995 RCMP charged the priest with a number of sex crimes involving children from Igloolik. The priest was released on his own recognizance with a promise to return to court. He never showed up.

Hiding in Europe

In fact, Dejaeger had fled to Belgium. The Canadian embassy asked Belgium to return Dejaeger. But nothing was ever done.

In 1998 Interpol issued an arrest warrant. But the warrant was never acted on.

RCMP issued a warrant for his arrest in 2002. Still nothing was done. Dejaeger continued to live openly with the Oblate religious community in Belgium.

A great deal of the credit to finally getting police to act goes to Sylvia McEachern who runs the blog Sylvia’s Site, which blogs about the sexual abuse crisis facing the Catholic church and other relgious organizations.

Ms. McEachern’s efforts to publicize the injustice facing Dejaeger’s victims was a factor in finally forcing law enforcement officials to take active steps to extradite Dejaeger back to Canada.

Belgium government not cooperative

In June 2010 Interpol issued another warrant. Even though there is no statute of limitations for the crimes Dejaeger was facing in Canada, the Belgium government considered Dejaeger a citizen and refused to extradite him because the statute of limitations for the sex crimes he committed in Canada had run out in Belgium.

Not a citizen

In 2011 Belgian police finally realized that Dejaeger no longer held Belgian citizenship. He was a Canadian citizen having given up his European citizenship when he came to Canada.


Dejaeger was finally extradited to Canada in January 2011 where his criminal charges have slowly made their way through the courts.

Uncertain memories caused by passage of time

So after 20 years of hiding in Europe is it any wonder that the memories of some of his victims are a little foggy after more than four decades?

Congratulations to all of the survivors who had the strength to testify against Dejaeger and received convictions today. I hope all of his victims receive some solace in the fact that Dejaeger will, at long last receive the punishment he deserves.

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The Chronicle Herald has reported that Roy Franklyn Newcomb has been arrested and charged with possessing and accessing child pornography.

The charges came about after a student at NSCAD (where Newcomb has worked for thirty years) found a USB thumb drive containing pictures and videos apparently depicting child pornography. Police were called in and computer forensics officers uncovered twenty images and nine videos depicting child pornography.

At the time of his arrest Newcomb was a foster parent and apparently has been for many years.

Anyone investigating the foster home?

This immediately raises the question about whether the Department of Community Services, which regulates foster home placements in Nova Scotia, is conducting an investigation. One would hope that all of the former foster children who have been placed in the Newcomb home will be contacted and interviewed as part of a wider investigation.

The foster child who was in the Newcomb home at the time of Newcomb’s arrest has been removed from the home. A court order forbids Newcomb from being within 50 meters of any playground, schoolyard, pool or any other area where children are known to frequent. He is also prohibited from having contact with any children under the age of 16 unless the child is with a parent or guardian and he is prohibited from using any device that has internet access.

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Class action settlement announced

A 16 year fight for compensation ended yesterday when the Province of Nova Scotia and former residents of the Home for Colored Children announced the details of a class action filed by former residents.

About 140 former residents of the Nova Scotia Home for Colored Children filed a class action seeking compensation for what they describe as years of neglect and emotional, physical and sexual abuse suffered by children in the school.

Last year the Home itself agreed to pay up to $5,000,000.00 to former residents. Yesterday’s announcement says that the province will be setting aside up to $29,000,000.00 to compensate survivors.

Adopts Indian Residential School compensation model?

Few details of the compensation program have been released to the public. However, according to Tracey Dorrington-Skinner, who was interviewed today on CBC’s Information Morning the compensation model sounds a great deal like the one approved by the courts in the national Indian Residential Schools (IRS) class action settlement.

Two parts to compensation model

Ms. Dorrington-Skinner said today that all of the former residents will receive a payment of $10,000.00 if they can prove that they resided at the home. That payment will increase depending on the length of time that the children were forced to live in the school.

According to a report by the Chronicle Herald anyone who was in the Home 40 days or less, will receive $1000.00. If they were in the Home up to a year they will receive $10,000.00. Anyone who was in the Home for longer periods will receive $3000.00 for each additional year.

This part of the Coloured Home settlement follows the IRS model almost exactly. the The payment, like the common experience payment that formed a part of the IRS settlement is being made to recognize the appalling conditions the children were forced to live in while residing in the home and to recognize, at least in the case of the IRS settlement, that the Residential School System was inherently racist.

Compensation for Physical and Sexual Abuse

According to Ms. Dorrington-Skinner, children who suffered serious physical or sexual abuse in the school will also be entitled to apply for additional compensation.

Again, this models the IRS class action settlement. Under the Individual Assessment Program (IAP) IRS survivors are entitled to apply for additional compensation of up to $325,000.00 plus proven income loss if they suffered harm as a result of serious physical or sexual abuse by an employee or another former resident of the school.

Arm’s length administration

One of the key components of the IRS settlement is that the compensation program and compensation payments are not managed by the defendant, Canada. An arm’s length entity, the Residential School Secretariat, was created to manage the claims process and pay survivors.

There is no indication in the details that have been released so far about whether the Colored Home settlement includes the creation of a neutral arm’s length authority to manage the claims process. However, given that the parties appear to have adopted the IRS model it seems logical to assume that the process will also include a third party to manage, validate and assess the claims.

Truth and Reconciliation

Another fundamental part of the IRS class action settlement was the creation of a Truth and Reconciliation commission to explore and investigate what happened in the residential schools, document survivors stories, and create a public record to help educate future generations.

Premier Stephen McNeil has announced that the province intends to embark on a public inquiry. Although the province has not set the terms of the inquiry, as of yet.

Having participated in Truth and Reconciliation hearings on behalf of the Shubenacadie Indian Residential School survivors I can say without a doubt that the TRC hearings for many survivors have been the most important part of the class action settlement process.

Looking to the future

For Ms. Dorrington-Skinner, and the other former residents of the Nova Scotia Home for Colored Children, yesterday marked the end of a very long fight for recognition of the harm that they suffered in the school.

The children that suffered physical and sexual abuse will still have to go through a further process to validate and compensate their claims. However, if the parties have adopted the IRS model in its entirety I can say that the Colored Home survivors should be able to receive a fair measure of compensation in a private and confidential process and avoid the time, cost and stress of adversarial and ublic litigation.

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One of the transformative experiences of my legal career has been representing Nora Bernard and the other survivors of the Shubenacadie Indian Residential School. Ii has been an honour to represent Nora (RIP) and more than 600 former residents of the Shubenacadie Indian Residential School in Nova Scotia for the past 18 years.

Nora Bernard filed the first class action against Canada seeking compensation for all former residents of a residential school.

Nora and the Shubenacadie survivors eventually joined other survivors from other schools in other provinces who worked together to create the National Indian Residential Schools Class Action Settlement. At the time it was the largest class action settlement in Canadian history and I believe to date it is still the largest historical redress settlement in the world.

I had the privilege of sitting on the Steering Committee that helped negotiate the terms of the national class action settlement. The class action included an Independent Assessment Process (IAP), as a way former residential school students could have their claims of physical and sexual abuse heard, validated and receive compensation for the terrible harm they suffered as children.

Promise of Confidentiality

One of the fundamental principles of the IAP was its confidentiality. Residential school survivors had kept the secret of their terrible experiences in the residential schools for decades. Therefore, in order to ensure as many survivors as possible would feel comfortable participating in the IAP, all of the parties to the agreement promised that survivors stories and experiences would remain private and confidential.

In fact, every IAP hearing starts with all of the parties participating signing a written promise obligating the parties to maintain the confidentiality of the proceedings and the stories and experiences that residential school survivors testified to in their hearings.

Is the TRC trying to break a promise?

Therefore, it has come as a shock to many residential school survivors that the Truth and Reconciliation Commission, which was set up as part of the Indian residential school settlement process, has gone to court seeking an Order forcing the IAP Secretariat to produce the records and transcripts of the thousands of private hearings that have taken place across Canada as part of the IAP.

The terms of the national class action settlement requires that all records be destroyed after completion of all of the IAP hearings.

While there are some residential school survivors who have received counselling and have now come to terms with what happened to them in the schools and are able to speak publically about those experiences, most residential school survivors are still terribly ashamed of what happened to them as children. For them, the privacy and confidentiality promises that were made to them in order to participate in the IAP are tremendously important.

It is worth pointing out that the Truth and Reconciliation Commission says that it does not intend to make survivors statements open for public review. Rather the TRC claims that they want the records to “be archived with the National Research Center”.

Promises made

Residential school survivors were promised if they participated in the IAP their stories of terrible physical and sexual abuse would be kept confidential and their privacy respected.

There is nothing wrong with the TRC wanting to create a record of the abuse that happened in Residential Schools.But if the TRC wants to keep a record of survivor stories then they need the permission of each and every residential school survivor!

Any survivor that does not want their story archived should be entitled to rely upon the promises made to them that those records would be destroyed once the IAP process is completed.


It is terribly ironic that the Truth and Reconciliation Commission, a body that was set up to help and encourage reconciliation between residential school survivors and the rest of Canada is now the source of fear and confusion and potential broken promises to residential school survivors.

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The Chronicle Herald reported yesterday that Konstanty Bedoa-Gorski a director and coach of a Halifax based program for high performance teen soccer players was sentenced to two years in prison for sexually assaulting one of his players, a 14 year old girl.

Family ripped apart

Judge Michael Sherar said Bedoa-Gorski took advantage of a dedicated player who was hungry for extra training and groomed her for sexual satisfaction. Judge Sherar said that Bedoa-Gorski’s actions had “ripped apart” the victim’s family.


The Crown Attorney, Richard Deveau made an important point that parents who have children in amateur sports need to think about. The Herald quoted Deveau:

“parents across the country place their trust in coaches and instructors every day when they drop their kids off at activities.”

This point is one that I have raised before, for example in my article for Lawers Weekly: Sports and Scouts at risk of Liability for Sexual Abuse.

Abuse crisis started with catholic church

Starting about two decades ago the catholic church faced an avalanche of claims in Canada and the rest of the world by thousands of victims of childhood abuse by priests. The claims were a terrible lesson, showing the vulerability of children and the need for better supervision of employees and volunteers by employers.

Vicarious liability for sexual abuse

The Supreme Court of Canada in Doe v Bennett ruled the Catholic Church could be held vicariously liable by sexual abuse by one of its Priests:

“Para28: First, the Bishop provided Bennett with the opportunity to abuse his power…

Para 29: Second, Bennett’s wrongful acts were strongly related to the physiological intimacy inherent in his role as Priest…

Para 30: Third, the Priest conferred an enormous degree of power on Bennett relative to his victims…”

Chief Justice McLaughlin stated in paragraph 32:

“The enterprise substantially enhanced the risk which lead to the wrongs of the Plaintiff-Respondents suffered. It provided Bennett with great power in relation to venerable victims and with the opportunity to abuse that power….”

Sports organizations at risk

Religious institutions aren’t the only employers at risk of liability for sexual abuse claims.

In my earlier article I suggested sports organizations need to be concerned about the potential liability for sexual abuse of children athletes by coaches.

Theo Fleury showed incredible courage going public with his history of sexual abuse by his junior hockey coach, Graham James.

In his autobiography “Playing with Fire” Theo Fleury showed just how vulnerable amateur athelets are to manipulation by their coaches, saying:

“The most influential adult in my life at the time was telling me that what I thought was wrong was right. I no longer had faith in myself of my own judgment.”

When will courts impose liability on employer?

Whenever the courts have imposed vicariously liability on an employer they focused on three factors:

1. The physical or psychological intimacy inherent in the relationships;
2. The vulnerability of the victim; and 3. The power and authority granted to the abuser by the employer.

Amateur sports organizations need to beware

All of these factors are present in the amateur sporting realm. It goes without saying young children who want to impress their coaches can be vulnerable to psychological manipulation and intimidation.

In instances where children are hoping to perform at competitive levels, the demands for individual attention greatly increases the power and authority that coaches have over child athletes.

Most religious organizations now have strict sexual abuse prevention policies that have rules, for example, preventing employees from being alone with children. But so far few sports organizations have implemented similar policies.

I would suggest sports organizations need to voluntarily implement these types of supervisory programs or, like the catholic church and other religious organizations, be forced to do so after financially crippling litigation.

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Today the Supreme Court of Canada refused to hear an appeal from a decision of the Newfoundland and Labrador Court of Appeal: Roman Catholic Episcopal Corporation of Saint John’s v. Guardian Insurance

The case is interesting to those of us who represent survivors of childhood of sexual abuse because it illustrates the challenges in recovering compensation for survivors.

In many cases the abuser has little or no assets or is dead. Often a survivor’s only hope of receiving some measure of compensation for their injuries is by pursuing the institution that employed the abuser.

Vicarious liability of employers tricky to prove

Whether an employer will be held vicariously liable for wrongful acts of employees (specifically sexual abuse) has been a difficult issue when representing survivors of sexual abuse. Traditionally, the view of the courts was that employers were not responsible for acts committed outside the scope of the employee’s employment. Since sexual abuse is clearly outside the scope of any type of employment employers were typically not held responsible (vicariously liable) for sexual assaults perpetrated by employees.

In 1999 the supreme court of Canada outlined the circumstances when an employer would (and would not) be held vicariously liable for sexual abuse by an employee: Bazley v Curry and Jacobi v. Griffiths.

“The employer knew it was happening!”

In order to avoid the difficulty of proving vicarious liability plaintiffs usually seek to prove a claim of direct liability against the employee. In most cases it is common for the plaintiff to plead that the defendant “knew or ought to have known” about the abusers conduct in order to try to establish a claim for negligence.

Knowlege impacts insurance coverage

However, if the plaintiff is successful in establishing the defendant employer’s knowledge of the abusers conduct it can impact on insurance coverage.

Case in point is the decision from Newfoundland and Labrador involving the Diocese of Saint John’s and its insurer, Guardian Insurance.

In 1989 the plaintiff, John Doe, sued the Diocese of Saint John’s and it’s Archbishop for compensation for abuse that John Doe suffered as a result of sexual assaults perpetrated by a priest employed by the Diocese, James Hickey.

The Diocese turned to its insurance company, Guardian, for indemnification and defence under its policy of insurance.

The insurance company denied liability on the grounds that the Archbishop or the Diocese knew or ought to have known about Hickey’s sexual misconduct and failed to communicate this knowledge. Having knowledge of Hickey’s conduct and failing to report was a breach of the Diocese obligations under the policy according to Guardian Insurance.

The insurance company was not able to find enough evidence to support this defence and eventually entered into a consent order to defend and indemnify the Diocese from claims made as a result of Hickey’s abusive acts.

Between 1992 and 1997 other persons came forward claiming that they had been abused by Father Hickey. Guardian Insurance eventually became aware of additional information that was filed as a result of the new claims that suggested that Archbishop Penney and other officials from the Diocese had knowledge of Hickey’s improper sexual activities.

Guardian subsequently claimed that Hickey’s assaults were not covered by the policy because the Diocese knew of his conduct and failed to report it to the insurer.

The Supreme Court of Newfoundland and Labrador allowed a motion by the Archdiocese to strike Guardian Insurance’s defence. The court ordered Guardian to defend and indemnify the Diocese.

Guardian appealed. However the Newfoundland Court of Appeal dismissed Guardian’s appeal finding that the insurer was required to both defend and indemnify under the policy.

The claim was subsequently appealed to the Supreme Court of Canada which released its decision today denying leave to appeal.

Why is this decision of importance to abuse survivors?

But for the consent order that Guardian enetered into, it is possible there would have been no insurance coverage available to pay the plaintiffs’ claims.

In this case, the Diocese likely had assests that could be liquidated, if necessary, to pay the claims.

In cases where the defendant actually has assets available to satisfy a judgment the availability of insurance may not be a determining factor in whether to bring forward a claim.

However, in cases where the employer is out of business or has limited assets (for example in the case of a charity) counsel for the plaintiff needs to weigh carefully the advantages and disadvantages of pleading knowledge on behalf of the defendant employer and needs to consider what impact that may have on potential insurance coverage.