Implications Huge for Other Organizations

By Kirk Makin
The Globe and Mail [Canada]
March 26, 2004

A Roman Catholic diocese in Newfoundland is liable for hundreds of sexual assaults committed against young boys over a 30-year period by one of its priests, the Supreme Court of Canada ruled yesterday.

A 9-0 majority said a diocese is much more than a faceless, landholding entity. It is instead a central authority intimately linked to the lives of parishioners, especially in isolated areas where its priests enjoy godlike status.

The court concluded that the Roman Catholic Episcopal Corp. of St. George's is both directly and vicariously liable for the failure of two successive bishops "to properly direct and discipline" Rev. Kevin Bennett during his prolonged sexual rampage.

"All temporal or secular actions of the bishop are those of the corporation," Madam Justice Beverley McLachlin wrote. "This includes the direction, control and discipline of priests, which are the responsibility of the bishop.

"The unnamed plaintiffs, 36 in number, suffered greatly as a consequence of the abuse," she said. "Now adults, they remain deeply wounded."

The ruling promises to have profound implications for non-profit and volunteer organizations, as well as for more than 30,000 litigants who are suing various churches and the federal government for abuse they suffered in native residential schools.

The federal government hoped the Supreme Court would side with several provincial appellate courts which had given an evidentiary break to non-profit or voluntary organizations in abuse cases. Plaintiffs in these cases were increasingly expected to show actual wrongdoing by supervisors for abuse committed by their employees.

Instead, Chief Justice McLachlin said in no uncertain terms yesterday that these organizations enjoy no special immunity. Being in a supervisory capacity is, on its own, enough to trigger liability.

"This is really important for residential schools," said Richard Rogers, a lawyer representing Father Bennett's victims and several residential school cases. "This means they are really on the hook. The plaintiffs are going to be very pleased. To be honest, if their claims are validated, it is going to cost the government hundreds of millions of dollars. It could even reach the billion-dollar mark."

Father Bennett admitted using money, liquor and outright intimidation to abuse his victims sexually from 1981 to 1989. The plaintiffs must now return to court to determine the extent of their suffering and the damages they will receive.

Mr. Rogers predicted the settlements could reach a million dollars based on recent precedents. "We are going to go for everything we can," he said. "There was overwhelming evidence that the powers that be knew what this guy was doing."

The Supreme Court also awarded the plaintiffs legal costs yesterday on a "solicitor-and-client" scale, in effect doubling the amount the defendants must pay in costs. "Let's face it; these defendants have very deep pockets," Mr. Rogers said. "They used this delaying tactic to beat people down. This should be a wake-up call for them."

The court declined to rule on another key point: whether the worldwide Roman Catholic Church is a corporate entity that can be sued. The court said it will wait for a case with a more extensive legal record.

Mr. Rogers said this was a side issue with no real effect on plaintiffs' fortunes. "Most dioceses have the financial ability to deal with compensation, so it was not necessary to bring the worldwide church in as an entity," he said.

However, Mr. Rogers said the finding of vicarious liability was vital.

"Most of this sexual abuse is done under the cloak of secrecy," he said. "Without vicarious liability the victims might never be able to get compensation. We would have an empty, hollow victory."

Chief Justice McLachlin agreed. "The church is at one and the same time a spiritual presence in the community and a secular actor in the community," she said.

She said the bishop's office, the enterprise of the diocese and the episcopal corporation are "legally synonymous."