After Orphanage Abuse Lawsuit, Canadian Dioceses Could Face New Wave of Litigation
By JD Flynn
February 18, 2021
A decision from Canada’s Supreme Court last month is likely to trigger a new round of lawsuits against Canadian Catholic dioceses. The court declined to hear an appeal against a lower court’s finding that the Archdiocese of St. John’s in Newfoundland had vicarious liability for a religious community which operated a notoriously abusive orphanage in the archdiocese.
|The Basilica of St. John the Baptist in St. John’s, Newfoundland. Credit: Nilfanion/wikimedia. CC BY sa 4.0|
That decision is expected to lead to more lawsuits against Canadian dioceses, over abuse committed by religious institutes within their territory. Those lawsuits could lead to a spate of diocesan bankruptcies.
The Mount Cashel orphanage story is one of the most egregious and horrific stories of sexual abuse in the history of Canada.
The orphanage opened in Newfoundland in 1898 and operated for nearly a century. It was operated by members of the Christian Brothers religious order. In the late 1980s and 1990s, it emerged that hundreds of orphanage residents had been sexually abused over decades at the orphanage.
In 1990, Mount Cashel closed.
In the decades that followed, the Christian Brothers and the Newfoundland government paid more than $27 million to victims of sexual abuse at the orphanage. The Christian Brothers in Canada eventually went bankrupt.
But one legal issue was not resolved until last month. Victim-survivors of abuse at the orphanage filed suit claiming that the Archdiocese of St. John’s was responsible for the abuse at the orphanage — that the archdiocese had created the environment in which abuse occurred by inviting the religious order to run the orphanage, and that it had been negligent in exercising supervision over the Christian Brothers.
The archdiocese claimed it was never responsible for the operations of the orphanage, and was not empowered to be involved in the internal operations of the Christian Brothers.
In July, the provincial Supreme Court of Newfoundland and Labrador found that the archdiocese did engage in some supervision over orphanage activities— but not enough.
The archdiocese assumed supervisory authority by inviting the Christian Brothers to run the orphanage, representing itself to the government as an operator of the orphanage, by approving its fundraising initiatives, by supplying priests for spiritual care, and by involving itself in admissions policies, the court said.
The court concluded that because the archdiocese exercised some kinds of oversight over the orphanage, it could not claim to have no responsibility with regard to abuse claims.
“The Archdiocese vested the Brothers with power over the appellants within a structure requiring obedience to and respect for the Brothers. This set-up was ripe for the Brothers to exercise their unchecked power and authority over the appellants,” the judges wrote.
“In our view, the total relationship between the Brothers at Mount Cashel and the Archdiocese shows that the Brothers were working on the account of the Archdiocese’s social and religious mandate. Their relationship was sufficiently close, and the connection between the Brothers’ assigned tasks and their wrongdoing was sufficiently close,to justify the imposition of vicarious liability on the Archdiocese,” the court concluded.
If it acted in charge when it was convenient, the judges said, the archdiocese had to be in charge when it proved inconvenient as well.
In January, Canada’s Supreme Court declined to hear an appeal from the archdiocese against the Newfoundland decision, essentially affirming the decision of the lower court. The archdiocese will now be required to pay more than $2 million in compensation to four victims, and is expected to be assessed damages for 60 more victims. Many of the claimants won lawsuits against the Christian Brothers, but were not paid in full because the order declared bankruptcy.
After the Supreme Court’s decision, Archbishop Peter Hundt of St. John’s said the decision “will have significant implications for the parishes and parishioners of our Archdiocese....There will be changes and sacrifices required of all of us as we move through this process. I cannot promise that the road ahead will be an easy one, but certainly the practice and celebration of our Catholic faith will continue.”
Some Canadian observers expect that the decision might lead to bankruptcy for the Archdiocese of St. John’s, a phenomenon that has become far more common in the wake of the U.S. abuse scandal than it has in Canada.
And Archbishop Hundt has said the consequences will be felt across the entire country.
“This ruling will set a legal precedent that will likely have profound implications for not only the future operations of the archdiocese, but for the operations of other episcopal corporations, charities and organizations,” Hundt said ahead of the Supreme Court’s decision.
Catholicism in Canada spread largely through the work of religious orders, who built schools, hospitals, and orphanages across the country. Some of them, among them many Indian residential schools, are plagued with a history of notorious sexual abuse.
The Newfoundland decision, implicitly affirmed by the Supreme Court, will make it far more likely that dioceses will be held vicariously liable for abuses which took place within institutions administered by religious orders. Because of the history of religious orders in the country, there could be serious claims in every part of Canada.
Of course, archdiocesan defenders argue that the safe environment standards of today were unheard of until recent decades, and that few dioceses were aware they should be monitoring institutions in their territory for sexual abuse. But the court’s decision is that if dioceses helped create the conditions for abuse by lax standards, it should be held accountable.
Victim-survivors have said this is a recognition of their suffering, while some Church defenders claim the decision unfairly makes dioceses accountable by contemporary standards for historical abuses.
In either case, lawsuits have already begun, and may well be influenced by the Mt. Cashel decision.
Canada’s Supreme Court upheld this month the right of an Ontario woman to reopen a settlement with the Diocese of London, because the diocese is alleged to have falsely claimed no knowledge of the an abusive priest’s history.
A lawsuit filed after the Newfoundland decision against the Archdiocese of Vancouver says that when Christian Brothers who were stationed at Mt. Cashel were transferred by the order to its schools in British Columbia, the archdiocese did not exercise adequate supervision.
The Vancouver archdiocese says it did not own or operate the schools. Against the standard of the Newfoundland decision, that defense may well not hold up.
Other lawsuits are likely to be filed soon, using the standards of the Newfoundland decision. The results of those suits would be significant for the long-term operational viability of Canadian dioceses.
Nearly 40% of Canadians identify as Catholic, but fewer than 25% of those Catholics said, even before the pandemic, that they attend Mass monthly. With a decline in religious practice, Canadian dioceses have faced diminished resources in recent years, and begun closing churches rather than address long standing deferred maintenance. The litigation that follows the Newfoundland decision may well drive several of them into bankruptcy.
It is not clear whether dioceses will consider establishing independent compensation programs as a means to provide for victim-survivors while maintaining operational funds, but in the wake of the Newfoundland decision, that practice could become widespread in Canada, as it has in the U.S.
In any case, Hundt’s statement seems likely to prove correct. There will be “profound implications” of the Newfoundland decision for the Church in Canada. What those are remains to be seen.
Canadian bishops have acknowledged that clerical sexual abuse has had deep impact on the history of Canadian Catholicism. It is now clear that the consequences of that abuse will shape much of the Church’s future as well.