Court File and Parties
LINDSAY COURT FILE NO.: CV-18-0015 DATE: 20200630 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
C.O. Plaintiff – and – Royce Galon Williamson and Trillium Lakelands District School Board Defendants
Counsel: E. Grace and N. Shethwala, for the Plaintiff Royce Galon Williamson (unrepresented and not present) R. Watt and M. Miles for the Defendant Trillium Lakelands District School Board
HEARD: November 18-22, 25-29, December 4-5, 2019
REASONS FOR JUDGMENT
SALMERS J.
Nature of the Proceedings and the Trial
1This was an action for damages first sustained many years ago when the plaintiff was a high school student. The plaintiff alleges that she was sexually abused by the defendant Williamson, who was her high school music teacher and band leader. The plaintiff claims damages against Williamson directly. With respect to the other defendant, the Trillium Lakelands District School Board (the School Board), the plaintiff claims that the School Board is vicariously responsible for Williamson’s conduct and, further, that the School Board is also directly liable to the plaintiff because the School Board’s response to the plaintiff’s disclosure of Williamson’s conduct caused her additional independent damages.
2Mr. Williamson defended the action. He attended and observed the examination for discovery of the plaintiff. Prior to trial, he responded to communications from plaintiff’s counsel, the School Board’s counsel, and the court’s trial coordinators. However, he did not attend on the first day of trial. Before proceeding, I directed plaintiff’s counsel, the School Board’s counsel, and the trial coordinator to attempt to contact Mr. Williamson by telephone at the numbers that he had left with them. Both counsel and the trial coordinator did so to advise Mr. Williamson that the trial was proceeding in Cobourg. Mr. Williamson did not respond to any of their messages and never attended the trial.
3This action was commenced in Lindsay. In the Central East judicial region, Lindsay is part of what is known as the Tri-Counties, namely the judicial districts for which Lindsay, Peterborough, and Cobourg are the courthouses. Trials for Tri-Counties’ actions are heard at whatever courthouse has courtroom availability. The trial coordinator confirmed to me that the week prior to trial commencement she advised all parties, including the unrepresented Mr. Williamson, that this action was to be heard in Cobourg commencing November 18, 2019, at 10:00 a.m. To avoid the possibility of confusion on November 18, 2019, pursuant to my direction that day, the trial coordinator called the Lindsay courthouse and had a full courthouse page conducted for Mr. Williamson. The trial coordinator advised me that there was no response to the page.
4In all of these circumstances, the trial commenced on November 18, 2019, in Cobourg, after all of the above efforts had been made to contact Mr. Williamson. None of those efforts were fruitful. On November 18, 2019 and thereafter, neither Mr. Williamson nor anybody on his behalf ever responded to any of the counsel or the trial coordinators. Further, neither he nor anybody on his behalf ever attended at the trial. The trial commenced and proceeded in the absence of Mr. Williamson or anybody on his behalf.
5Before closing arguments, after request by and consent of both the plaintiff and the School Board, I ordered that Mr. Williamson’s Statement of Defence and his Crossclaim be struck. However, it remained for the plaintiff to prove her allegations and damages.
The Abuse Suffered by the Plaintiff
6The plaintiff’s allegations are of extremely serious sexual abuse. Her allegations of abuse were not contested by the School Board. I found the plaintiff’s testimony about that abuse to be very compelling. Her memory of the incidents of abuse and the situations in which the abuse occurred was excellent. Her recollection of detail was very good, especially considering that the events occurred almost four decades ago. She remembered and testified about 10 separate incidents, all of which occurred from March until June of 1983. Her memory of detail was so good that she almost always remembered the chronological order in which the incidents occurred. She frankly stated when she was not sure if one event had preceded another. There were no material inconsistencies with contemporaneous written documents or any other evidence that was adduced. When testifying about the abuse, her demeanour and emotional affect were appropriate, not exaggerated, considering the matters about which she had to testify. For those reasons, I believe her testimony about the abuse that Mr. Williamson perpetrated upon her. Accordingly, I make the following findings of fact.
7The plaintiff was born on November 16, 1966. She grew up in a rural area just north of Lindsay, Ontario. The plaintiff attended a very small, rural elementary school. She was one of the best students in her class, both academically and otherwise. For high school, she attended I.E. Weldon, a school in Lindsay. She had to take a school bus every day.
8At Weldon, she was a good student, but no longer a top student as she had been during elementary school. However, she enjoyed school, particularly sports and music. She played in the school band.
9In the 1982-1983 school year, the plaintiff was in grade 11 at Weldon. She turned 16 in November 1982. Mr. Williamson was both her music teacher and the school’s band leader. The plaintiff saw Mr. Williamson very frequently, both during music classes and during band practices. Further, within the first month of that school year, Mr. Williamson took on a mentor/confidant/counsellor role with the plaintiff. They met frequently, multiple times per week, and she confided in him about ongoing personal/family problems. He was a good, patient, caring listener. He was encouraging and supportive. She really liked him. More importantly, she trusted him and felt secure when confiding in him. This continued throughout the school year.
10During the March 1983 school break, the Weldon band took a school trip by bus to New York City. The trip’s purpose was to give the band opportunities to perform, as well as the chance to see the sights of New York City. The plaintiff was on this trip, as was Mr. Williamson. It was on this trip that the first troubling incidents occurred.
11First, while on a ferry to the Statue of Liberty, the plaintiff was climbing some stairs and felt somebody touch her calf. When she looked back, she saw that it was Mr. Williamson who was smiling as he touched her. He later touched her calf again in a gentle, caressing manner.
12Later, as the school group was packing to leave New York City, Mr. Williamson asked and beckoned for the plaintiff to enter his hotel room. She did so. Then, bizarrely, he had her wait outside the bathroom as he brushed his teeth. He never explained the purpose of her being there before ushering her out of the room.
13On the bus ride home from New York to Lindsay, the plaintiff was sleeping. She awoke to find Mr. Williamson touching and rubbing her foot in an intimate way, under a blanket.
14The plaintiff was very confused by these touching incidents. Neither she nor Mr. Williamson said anything during the touching incidents.
15I find that through his mentor/confidant role and the above described incidents that took place during the New York trip, Mr. Williamson had effectively groomed the plaintiff to accept more serious sexual advances.
16The bus from New York arrived late at night in Lindsay. Parents had to be called to pick up their children. Mr. Williamson told the plaintiff that he was dropping off two other male students and that he could give her a ride home. She accepted. Mr. Williamson dropped off the other two students first, even though geographically it would have been more sensible to drop off the plaintiff before the last male student. The plaintiff dozed off while alone with Mr. Williamson in his truck. She woke when the truck stopped in a treed area. She had no idea where they were. Mr. Williamson began kissing her and removing her clothes. Neither he nor the plaintiff was saying anything. He removed almost all her clothes, perhaps leaving only her shoes and socks. Mr. Williamson left the truck and went to the passenger side. He removed his pants and underwear. He got in the passenger seat and pulled the plaintiff on top of him, so that she was straddling him. He touched her breasts and tried to penetrate her vaginally. She was terrified and said nothing. He asked her to perform fellatio. She said and did nothing. Then, he turned her body around and sodomized her until ejaculation. During this incident, the plaintiff closed her eyes and tried not to think about what was happening. After he finished, Mr. Williamson got out of the truck, put on his pants, then returned to the driver’s seat and drove the plaintiff home.
17Upon arrival at her home, the plaintiff went directly to the bathroom and tried to wash up. She had a bowel movement, then vomited, and then cleaned herself up in a shower stall although she did not shower. Her parents were not awake when she got home. She could not bring herself to tell her parents what had happened. She cried herself to sleep.
18The plaintiff was very confused. She was a virgin. She had never before seen a man’s penis. She could not bring herself to tell anybody and was particularly ashamed of the fact that it was anal rape. She did not know what to expect when she returned to class and when classes resumed, Mr. Williamson acted as if nothing had happened. The plaintiff still really trusted him and was willing to forget what had occurred and resume their prior relationship of student and teacher/mentor/confidant.
19Mr. Williamson sodomized the plaintiff on two subsequent occasions. The first occasion was when he was driving her home from band practice. They went to a clearing in the woods. He removed her clothes and sodomized her until ejaculation. She tried not to think about what was happening. Afterwards, she felt stupid and that nothing could be worse. She told nobody because she was so ashamed about what had occurred.
20The last incident of sodomy occurred in Mr. Williamson’s office which directly adjoined the music classroom/band practice room. Band practice occurred after classes ended. One day after band practice, Mr. Williamson had the plaintiff come to his office. He used instrument lubricant and sodomized her until ejaculation. She tried to blank out what was occurring. She felt filthy and violated.
21There were also several incidents when Mr. Williamson had the plaintiff perform fellatio on him.
22One incident of fellatio occurred when Mr. Williamson was driving the plaintiff home after a band practice. He ejaculated in her mouth. Then, he drove her home and met her father. She had never before performed this act. She was ashamed.
23Another incident of fellatio occurred in Mr. Williamson’s office after band practice. Again, he ejaculated in her mouth.
24There were also two fellatio incidents that occurred in Mr. Williamson’s office while class was ongoing. Mr. Williamson’s office adjoined the music classroom. The only door to the office was from the classroom. Twice, while class was ongoing, Mr. Williamson called the plaintiff into his office. The other students remained in the classroom. He would then touch her sexually and have her fellate him as he leaned against the door. He did not ejaculate. She would leave the office first and he would come out a minute later. His erection was visible as he stood in front of the class. The plaintiff was terrified that other students would realize what was going on.
25There were three other incidents of touching that occurred during class, in Mr. Williamson’s office, when a class of students remained in the classroom that was immediately adjacent to the office.
26In the first incident, Mr. Williamson asked the plaintiff to come into his office. She felt that she had no choice and that resistance would have drawn the attention of the other students. As soon as she had entered the office, Mr. Williamson stood with his back against the closed door. He pulled her tight against him. She could feel his erection. He unzipped her jeans and put his hands down the front and back of her jeans while kissing her deeply with his tongue. This continued for a couple of minutes before he let her out.
27In another incident, he did the same things as in the previous incident. In addition, he pulled up her sweater and bra and kissed her breasts for a few minutes.
28The final sexual incident occurred during a test. For tests of individual students during classes, Mr. Williamson would have students come in his office and play their instruments after he closed the door. Once, he called the plaintiff in to play a test. As the plaintiff was playing, Mr. Williamson sat close to her and touched her over her clothes, including rubbing her crotch.
29The plaintiff did not want to engage in any of the sexual acts that occurred. However, during all of the sexual incidents that I have found occurred, the plaintiff did not object or resist because she did not feel that she had a voice or could stand up to Mr. Williamson. He was her teacher/band leader and, as such, had power over her. Further, he was her mentor/confidant/counsellor. She was confused and did not understand why a man who she respected, liked, and trusted so much would do these things to her. Her self-confidence increasingly crumbled and she felt that she could not resist or say anything.
30After these sexual incidents had occurred and classes were almost over or had ended in June, the plaintiff did resist other advances of Mr. Williamson. She did so once during class when he asked if anybody had hand cream and then asked her into his office. She pretended not to hear. Another time she stayed silent when he asked her to come and sleep at his farm. Once, she walked away from him when he approached her in the library and asked her to come with him to Toronto. He pursued her and asked her to come to his office. She avoided him and went home.
31There were no further incidents of abuse, mainly because the school year had ended. In the following school year, the plaintiff took steps to avoid contact with Mr. Williamson so that further abuse could not occur. Such steps included the plaintiff ceasing to take music and band, previously her favourite subject and extracurricular activity.
32Those are the incidents and facts corollary thereto that I find were proven at trial. Additional facts that are relevant only to direct claims against the School Board or to the issue of damages will be found and discussed when dealing with those matters.
33In summary, Mr. Williamson found and groomed the plaintiff, a vulnerable young girl, before he began perpetrating the above described acts upon her. Mr. Williamson’s sexual abuse upon the plaintiff was extremely intrusive and he increasingly seemed to enjoy the risk of being caught in the act. The plaintiff was confused that this man, who she liked and trusted so much, was doing these things and forcing her to do these things. She felt powerless to resist and too embarrassed to tell anybody what was happening.
The Liability of Williamson
34Initially, the School Board pleaded that the plaintiff’s claims were statute barred by limitations. That defence was not pursued at trial. The Limitations Act, 2002, S.O. 2002, c.24, specifically states that there is no limitation period of proceedings that are based on sexual assault, misconduct of a sexual nature against a minor, and related breaches of fiduciary duty and vicarious liability. [1] These are the claims being made and the nature of this proceeding. Accordingly, the plaintiff’s claims are not statute barred by limitations.
35The plaintiff submits that Mr. Williamson is liable for the torts of sexual assault and battery. The further submits that Mr. Williamson is liable for breach of his fiduciary duty owed to the plaintiff.
Sexual Assault and Battery
36Mr. Williamson was the plaintiff’s teacher and band leader. As such, he had power over her, his 16-year-old student. Further, as a result of his mentor/confidant/counsellor role, she really liked and trusted him. He abused this power and trust by engaging in the multiple sexual acts that I have found occurred. The plaintiff did not want to engage in these sexual acts, but she was confused, felt powerless, and complied or did not resist. In all of the circumstances, I find that she did not freely choose to engage in the sexual acts that occurred. The plaintiff has therefore proven that Mr. Williamson intentionally engaged in these sexual acts with her without her consent. The torts of assault, battery, sexual assault, and sexual battery have been proven. Accordingly, Mr. Williamson is liable for damages.
Breach of Fiduciary Duty
37As the plaintiff’s teacher and band leader, Mr. Williamson had power and discretion that he could and did exercise which could and did affect the plaintiff and her interests. As his student, the 16-year-old plaintiff was vulnerable to Mr. Williamson’s power and discretion. In these circumstances, the relationship between Mr. Williamson and the plaintiff has all three general characteristics that the Supreme Court of Canada has stated are possessed by fiduciary relationships. [2]
38Further, as the plaintiff’s teacher, Mr. Williamson was statutorily charged with responsibility for her care. I accept the unchallenged evidence of the expert, Mr. Tucker, and of Ross Smyth, a former vice principal at Weldon, that Mr. Williamson, like all teachers, stood in loco parentis towards all students, including the plaintiff. He had an obligation to act in her best interests.
39In these circumstances, I find that Mr. Williamson was in a fiduciary relationship with the plaintiff. His fiduciary obligation was to act in her best interests. In carrying out his fiduciary obligation, Mr. Williamson had the right and discretion to prescribe and undertake a course of reasonable conduct to promote the plaintiff’s best interests. It may be trite that teacher-student sexual activity does not fall within those parameters and, therefore, would be a breach of a teacher’s fiduciary duty owed to a student. But, to put it another way, Mr. Williamson knew that teacher-student sexual activity was not permitted and was grounds for dismissal. Therefore, teacher-student sexual activity did not fall within the course of reasonable conduct that he had the right and discretion to prescribe and undertake in order to promote the plaintiff’s best interests. Further, at his examination for discovery, Mr. Williamson admitted that he knew that teachers were not to touch students sexually.
40Accordingly, by engaging in sexual activity with the plaintiff, Mr. Williamson acted beyond the scope of his power and discretion thereby breaching the fiduciary duty that he owed to the plaintiff.
41No matter how one may look at the circumstances of this case, when Mr. Williamson, the teacher/band leader, engaged in sexual activity with the plaintiff, his student, he breached the fiduciary duty that he owed to her. Accordingly, he is liable for damages for that breach.
Summary on Williamson’s Liability
42For the reasons just stated above, Mr. Williamson’s sexual activity with the plaintiff gives rise to him being liable in damages to the plaintiff for the torts of assault, battery, sexual assault, and sexual battery. For that same sexual activity, he is also liable in damages to the plaintiff for the breach of his fiduciary duty that he owed her. I will next examine whether the School Board is vicariously liable for Mr. Williamson’s conduct.
Vicarious Liability of the Trillium Lakelands District School Board
43At the time of the wrongful conduct, Mr. Williamson was an employee of the Victoria County Board of Education (the Victoria Board). The defendant Trillium Lakelands District School Board (the School Board) is the successor to the Victoria Board and as such assumed all of its debts and liabilities. In this action, the plaintiff pleads that the School Board should be found vicariously liable for Mr. Williamson’s wrongful conduct.
44Vicarious liability is a form of strict liability that holds an employer liable for the tortious conduct, including intentional misconduct, of its employees. The Supreme Court of Canada decision of Bazley v. Curry [3] sets out the framework for determining whether an employer is vicariously liable for the sexual misconduct of an employee. A two-step test is to be employed. [4]
45The first step of the Bazley test is to see whether there are precedents. For cases similar to the present case, there are different precedents in different provinces; some find vicarious liability, others do not. There are no binding precedents. Accordingly, the second step of the Bazley test is engaged.
46The second step of the Bazley test is to determine whether vicarious liability should be imposed in light of the policy rationales underlying vicarious liability. [5] Those policy rationales are: 1) fair compensation for victims; and 2) deterrence of future harm. [6]
47Generally, the two policy rationales are assessed together, in context. As stated in Bazley:
The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. [7]
48In Bazley, the court set out a non-exhaustive list of factors that may assist in making the vicarious liability determination:
In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:
(a) the opportunity that the enterprise afforded the employee to abuse his or her power; (b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); (c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; (d) the extent of power conferred on the employee in relation to the victim; and (e) the vulnerability of potential victims to wrongful exercise of the employee’s power. [8]
49I have considered these and other factors when making the vicarious liability assessment in the present case.
50During the 1982-83 school year, Mr. Williamson was employed by the Victoria Board to work at Weldon as a music teacher and band leader.
51It is trite that teachers have power over students. Further, teachers who lead extra-curricular activities often have additional power over the students who participate in those activities. The teachers can determine which students will play on sporting teams or how and which students will participate in a school band. Students want to please such teachers. Mr. Williamson had such power over the plaintiff who was a member of the school band that was led by Mr. Williamson.
52Also, teachers who lead extra-curricular activities often develop a closer relationship with students who participate in those activities. This arises from the fact that both the teacher and students are participating in an activity that is mutually enjoyed and from the fact that the teacher and those students often spend more time together than is spent with other teachers or students.
53In addition to his power over the plaintiff as a teacher, and the closer relationship with her that arose as band leader, Mr. Williamson, through his mentor/confidant/counsellor role, had caused the plaintiff to like, trust, and feel secure with him. That mentor/confidant/counsellor role was corollary to, an extension of, and, therefore, I find part of, his role as a teacher.
54Overall, prior to any of the incidents, I find that Mr. Williamson exercised significant power over the plaintiff, to whom he was in a position of trust. Further, his position and conduct caused the plaintiff to have a sense of security when she was with him. All of this arose from and because of his employment as a teacher and band leader by the Victoria Board.
55It is not uncommon for students to have personal or family problems that are unrelated to school. Also, the teenage years and being a student are often difficult for many young people. Accordingly, high school students are often very vulnerable to suggestion, criticism, and abuse. The plaintiff was such a vulnerable student.
56Student field trips using bus travel have long been part of public education in Ontario. Prior to 1983, there had been field trips for students in the Weldon music program. In 1983, Mr. Williamson organized the trip to New York City and about 40 or 50 band members went on that trip. In these circumstances, it is reasonable to infer and I find that the 1983 Weldon trip to New York City was accepted and approved by the Victoria Board as an activity in furtherance of the students’ education.
57In the first half of the 1980’s there was no provincial ministry or local board policy about the transportation of students by teachers. In the 1980’s it was an accepted practice for teachers working in smaller Ontario centres like Lindsay to drive students home from school or school-related activities. In that era, and presently, teacher/student sexual activity was not permitted and was grounds for teacher dismissal. By allowing teachers to drive students home, opportunities were created for teachers to abuse students.
58When Mr. Williamson was a teacher at Weldon, he sometimes drove students home from school or school-related activities. The plaintiff was among the students that Mr. Williamson sometimes drove home from school or school-related activities. In these circumstances, I find that during the 1982-83 school year, including when the bus returned to Weldon from New York in March 1983, the Victoria Board accepted and approved of teachers driving students home. This acceptance and approval included Mr. Williamson driving the plaintiff home, including both the night of the return from New York and on other nights after band practice ended.
59It also made sense to have individual instrument testing take place without distractions. Mr. Williamson’s time after classes was already at least partially taken up by his role as band leader. Therefore, I find was that it was accepted and approved by the Victoria Board that Mr. Williamson would conduct students’ individual instrument testing during music classes, in his office with the door closed, while other students remained in the music classroom immediately outside that door. This individual testing also provided opportunities for abuse, as occurred with the plaintiff. Students, including the plaintiff, had little choice but to comply with Mr. Williamson’s requests for individual testing in his office.
60In summary, Mr. Williamson’s power as the plaintiff’s teacher was augmented by the fact that he was also leader of the school band of which the plaintiff was a member. As well, as band leader, Mr. Williamson developed a further closeness with the plaintiff. His mentor/confidant/counsellor role led to her liking him and developing trust and a sense of security when with him. All of this arose from Mr. Williamson’s employment as a teacher. Like many students, the plaintiff was vulnerable. Finally, although teacher/student sexual activity was prohibited, it was an accepted practice for teachers, including Mr. Williamson, to drive students, including the plaintiff, home after school or school-related activities, such as after the bus returned from the March 1983 trip to New York. Additionally, although in-office individual testing made sense in the circumstances, it also created opportunity for teacher/student abuse.
61In all of these circumstances, I find that the Victoria Board accepted and approved of: a) teacher/student transport; b) the March 1983 New York trip; and c) in-office individual testing. Mr. Williamson’s employment as a teacher and band leader not only afforded to him the opportunity to abuse his power over the plaintiff, but also materially increased the risk of sexual assault and harm to the plaintiff. There was a strong connection between the Victoria Board’s policies and practices and Mr. Williamson’s employment obligations that significantly increased the risk of harm to the plaintiff.
62Finally, at the time of the March-June 1983 incidents, there was no policy dealing with teacher/student transport. It was not until 2017 that the School Board approved a procedure on this matter. But that procedure deals only with field trips and excursions, not with transport for other purposes, such as after school sports training or band practices. Also, while the 2017 procedure states that use of personal vehicles is to be avoided, it does not further restrict such use. Further, Earl Manners, a current School Board officer, testified that there are still no School Board policies about having windows in doors or keeping doors open when a student and teacher are in a room. Considering the just discussed transportation procedure and lack of School Board policies, I find that there remain opportunities for teachers employed by the School Board to transport students at the risk of harm to the students.
63The policy considerations that justify the imposition of vicarious liability are fair and efficient compensation for wrongs and deterrence. For the reasons stated above, I have found that Mr. Williamson’s wrongdoing is strongly connected with his employment with the Victoria Board which employment materially and significantly increased the risk of harm to the plaintiff. Also, as stated above, there remains an ongoing risk of harm to students. The School Board is liable for debts and obligations of the Victoria Board. In all of the circumstances, and for the reasons stated above, the fair allocation of the consequences and deterrence require that the School Board be vicariously liable for damages as a result of Mr. Williamson’s wrongdoing.
64Accordingly, the School Board is vicariously liable for Mr. Williamson’s wrongful conduct.
Direct Claims against the Trillium Lakelands District School Board
65In addition to being vicariously liable for Mr. Williamson’s wrongful conduct, the plaintiff claims that the School Board is directly liable to her for negligence and breach of fiduciary duty. These claims are made in relation to the Victoria Board’s handling of the plaintiff’s disclosure of Mr. Williamson’s misconduct. To understand and assess these claims, it is necessary to go into detail about the facts of the plaintiff’s disclosure and the subsequent School Board reaction and conduct. I will now set out the material findings of fact.
66When he taught at Weldon, Mr. Williamson was not informed of any rules regarding transportation of students.
67Mr. Williamson’s abuse of the plaintiff ended in June 1983. To that date, the plaintiff had not told anybody about Mr. Williamson’s misconduct. During the summer of 1983, during dates, the plaintiff told two men about the misconduct. She told nobody else.
68As stated above, when the 1983-84 school year started, the plaintiff took steps to avoid further contact with and abuse by Mr. Williamson. As a result, no further incidents occurred. The plaintiff continued to tell nobody about Mr. Williamson’s misconduct that had occurred during the previous school year.
69However, Weldon teachers worried that something was wrong with the plaintiff as they had noticed changes in the plaintiff’s behaviour. In particular, teachers had noticed that she had changed from a happy, popular, involved student and had become withdrawn and less involved. Concerned teachers contacted the Weldon guidance department.
70In the spring of 1984, the plaintiff was referred to and asked to attend at the Weldon guidance department. When she arrived, she was taken to a makeshift office in the guidance department by Bob Grenier, a 23-year-old college student who was at Weldon one day each week on a co-op student placement as part of his college studies. I found Mr. Grenier to be a very credible and reliable witness. He had an excellent memory, which is understandable. The disclosure of extremely serious teacher/student sexual abuse was probably more than he, a young co-op student, had expected to hear. He knew that what he was hearing was something very serious that had to be addressed. It is understandable that a young man in his position would have the details of what occurred, both during and after the disclosure had been made, firmly imprinted in his mind. Also, during his testimony, he did not guess when he did not know or remember. He was responsive to questions. During cross-examination, very capable defence counsel did not try to shake him or attack his credibility and reliability. I accept Mr. Grenier’s testimony as being reliable on material facts.
71At their first meeting, the plaintiff was told by Mr. Grenier that he was a co-op student and that her attendance was voluntary. Initially, although attentive, the plaintiff was withdrawn, sad, and uncommunicative. After each meeting, Mr. Grenier asked if she wished a further meeting. The plaintiff always said yes.
72Increasingly, the plaintiff opened up and became more communicative with Mr. Grenier. After a few meetings, she began talking about Mr. Williamson and how she had spent time with him. Eventually, during a meeting, the plaintiff told Mr. Grenier about the New York trip and then vaguely about physical contact and sexual acts. The plaintiff became upset, emotional, and teary as she began disclosing about what had occurred with Mr. Williamson.
73At their next scheduled meeting, the plaintiff gave Mr. Grenier a lengthy note that she had handwritten. That note became an exhibit at this trial. [9] In that note, the plaintiff set out in detail the history of her relationship with Mr. Williamson, including details about sexual activity. Mr. Grenier realized that what was set out in the note was very serious. He told the plaintiff that he had to report to Sandy Thompson [10], the head of Weldon’s guidance department, and show the note to her. The plaintiff was upset, embarrassed, and ashamed. She did not want anybody, including Ms. Thompson, told about what had occurred with Mr. Williamson. Mr. Grenier explained to her that he had no choice and had to report the plaintiff’s disclosure, including what was in the note, to Ms. Thompson. Eventually, the plaintiff understood that he had to do so, but she remained adamant that police and her parents were not to be told.
74Immediately after his meeting with the plaintiff ended, Mr. Grenier met with Ms. Thompson, whose memory and recall of all events surrounding the plaintiff’s allegations and disclosure and the Weldon and School Board response is far poorer than that of Mr. Grenier. She often candidly admitted that she could not remember the events as they had occurred so long ago. Where her testimony differs from that of Mr. Grenier, I accept the testimony of Mr. Grenier.
75When Mr. Grenier met with Ms. Thompson that day, he told her that he had received the plaintiff’s note, described the contents of the note, and then gave her the note. He never saw the note again. Ms. Thompson was shocked and upset by the allegations and contents of the note. She told Mr. Grenier that she had to tell Weldon’s principal.
76The same day after meeting with Mr. Grenier, Ms. Thompson met with the plaintiff. She told the plaintiff that Mr. Grenier had made her aware of the plaintiff’s allegations and asked if they were true. The plaintiff confirmed that they were true. Ms. Thompson discussed the seriousness of the allegations with the plaintiff and told her that for the safety of other students and the plaintiff’s younger sisters, the principal had to be told. Although the plaintiff was reluctant and embarrassed, she finally agreed that Ms. Thompson could take the matter to Weldon’s principal. However, the plaintiff was adamant that the police were not to be told. Ms. Thompson replied that was up to the principal to decide. Ms. Thompson says that she had no discussion with the plaintiff about whether the plaintiff’s parents were to be told.
77Ms. Thompson testified that minutes after meeting with the plaintiff, Ms. Thompson met with Weldon’s principal, Jack DeBois, in his office. Nobody else was present. She testified that she told him about the meetings with Mr. Grenier and the plaintiff and the allegations. She testified that after leaving the meeting she believed that Mr. DeBois would deal with the situation.
78Due to Ms. Thompson’s bad memory, I am not satisfied that she had this meeting alone with Me. DeBois. The meeting may or may not have occurred. But, because of the reliability of Mr. Grenier’s testimony, I am satisfied that, on the same day that Mr. Grenier received the plaintiff’s note and disclosed the allegations and note to Ms. Thompson, there was an emergency meeting in the principal’s office.
79At that emergency meeting, only Mr. Grenier, Ms. Thompson, and Mr. Debois were present. The meeting lasted no more than 30 minutes. Ms. Thompson told Mr. DeBois the contents of the plaintiff’s note. Mr. Grenier told Mr. DeBois about what the plaintiff had disclosed to him orally during their meetings in his makeshift guidance department office. Mr. Debois was concerned and upset about what had occurred. His primary concern was for the safety and well-being of the plaintiff. At the meeting, they discussed whether to contact the plaintiff’s parents and/or the police. The meeting’s attendees were aware of and understood the plaintiff’s wishes that neither her parents nor the police were to be told of her allegations. No decision was made at the meeting about whether either the parents or the police would be told or contacted.
80After the emergency meeting, Mr. Grenier was given no direction about what else he should do. He had no further contact about the plaintiff’s allegations with Ms. Thompson, Mr. DeBois, or any other school or school board representative. Mr. Grenier was unaware of any further obligations for him to further report the matter. He did subsequently see the plaintiff once or twice in his makeshift office. During those meetings, they discussed her allegations. The plaintiff remained very concerned about the allegations being leaked to family, friends, the public, and the police.
81Ms. Thompson testified that, as her principal, only Mr. DeBois could have given her direction to provide supports for the plaintiff, but that he gave her no such direction. I accept that evidence. There is no evidence that Ms. Thompson was ever told by anybody to provide any supports for the plaintiff.
82At some point, Mr. DeBois came into possession of the note that the plaintiff had given to Mr. Grenier. Although there is no direct evidence, the only reasonable inference is that, at some time, Ms. Thompson gave the note to Mr. DeBois.
83After the emergency meeting, Ms. Thompson had no further involvement with the plaintiff or what was happening as a result of the plaintiff’s allegations. She was not asked to do anything. She heard nothing about what was happening until one day when she asked Mr. DeBois. After that conversation, she believed that Mr. Williamson would not be returning to Weldon. However, she saw that Mr. Williamson continued teaching at Weldon for the remainder of the 1983-84 school year.
84After her meeting with Ms. Thompson and Mr. Grenier, the plaintiff had a meeting with Mr. DeBois, alone in his office. Her note that she had given to Mr. Grenier was discussed. She was asked a few questions. She told Mr. DeBois some details of her allegations. After the meeting, she felt that adults would properly deal with her allegations.
85Apart from one or two counselling sessions with Mr. Grenier, the plaintiff had only one further meeting with Weldon or Victoria Board officials about the allegations. That meeting was on April 16, 1984 in the principal’s office with Mr. DeBois. During that meeting, the plaintiff handwrote a note exactly as it was dictated to her by Mr. DeBois. The note reads as follows:
The matter I reported to you concerning Mr. R. Williamson should be kept confidential with school officials and I do not wish to have the matter reported to, or investigated by, the police or reported to my parents. [11]
86Ross Smyth was Weldon’s vice principal from 1980-1986. On March 29, 1984, Mr. Debois made him aware of the plaintiff’s allegations against Mr. Williamson. Mr. Smyth was made aware that the plaintiff did not want her parents or the police to be told. Mr. Smyth testified that he was asked by Mr. DeBois to attend, take notes, and make minutes of a meeting with Mr. Williamson. The meeting took place a half hour later in the principal’s office. The only persons present at the meeting were Mr. DeBois, Mr. Williamson, and Mr. Smyth.
87Mr. Smyth realized the importance of the meeting and took very careful notes during the meeting. He sometimes noted the exact words spoken. He transcribed the notes into minutes immediately after the meeting ended. Those minutes were an exhibit at this trial. [12] In the circumstances described, I find that the minutes accurately state what occurred during the meeting.
88In the minutes, it states that during the meeting, Mr. DeBois told Mr. Williamson in some detail about the allegations. After listening to Mr. Williamson’s response, Mr. DeBois repeatedly told Mr. Williamson that he believed the allegations. Mr. Williamson was told that senior administration were aware of a problem in the school. Mr. DeBois asked for Mr. Williamson’s resignation. Mr. Williamson requested some time to consider his options. The meeting ended and Mr. Williamson was allowed to continue with his duties.
89Within a day or two of the March 29, 1984 meeting, Mr. Williamson unexpectedly showed up at Mr. Smyth’s office and tried to persuade him that he was innocent. Mr. Smyth quickly ended the meeting and sent Mr. Williamson on his way.
90Mr. Smyth had no further involvement with the matter. He became Weldon’s principal in 1989. He testified that, at that time, he was advised by Mr. DeBois that there was a sealed envelope in the principal’s office dealing with the matter. When Mr. Smyth retired as Weldon’s principal in 1996, he advised the subsequent principal of the existence of the envelope in the office. That sealed envelope was found by the School Board in 2017. Included in the envelope were the plaintiff’s note given to Mr. Grenier, the minutes that Mr. Smyth had taken at the meeting between Mr. DeBois and Mr. Williamson, and various letters, notes, and documents relating to the matter.
91After the March 29, 1984 meeting, Mr. Williamson had no further meetings about the matter with either Weldon or Victoria Board representatives. The day after the meeting, Mr. Williamson resumed teaching music and leading band at Weldon as he had done prior to the meeting. He continued doing so, without any restrictions or direction about student transportation, until the end of the 1983-84 school year in June 1984. Mr. Williamson submitted his letter of resignation on May 15, 1984 to be effective June 30, 1984. Apart from one week as a supply teacher in Peterborough, he has not taught at a school since June 30, 1984.
92Mr. Williamson retained a lawyer immediately after the March 29, 1984 meeting and the matter was in the hands of lawyers for Mr. Williamson and the Victoria Board. Weldon and Victoria Board officials were involved with the lawyers as it was necessary.
93From his notes that were found in the sealed envelope, I find that, at least until the settlement agreement was executed, Mr. DeBois frequently asked himself if the plaintiff’s parents should be told about the allegations. Further, it is also absolutely clear that the plaintiff did not want her allegations to become known beyond those who were already aware. She certainly did not want her parents or the police to be told or become involved. I am satisfied that both Weldon and Victoria Board officials considered whether the plaintiff’s parents and the police should be told about her allegations.
94By April 30, 1984, terms of a settlement had been reached. That settlement provided for Mr. Williamson’s resignation at the end of the school year. Execution of the settlement agreement document was completed May 4, 1984.
95It was also a condition of that settlement that the Victoria Board obtain and provide to Mr. Williamson written authority from the plaintiff that the board was to refrain from notifying both the plaintiff’s parents and the police about the plaintiff’s allegations. In fact, as set out above, that written authority had already been obtained on April 16, 1984.
96After April 16, 1984, the plaintiff had one or two counselling sessions with Mr. Grenier before that school year ended. She was not contacted by and had no involvement with any other Weldon or Victoria Board representatives, employees, or officials. During the subsequent school year, Mr. Grenier approached her in the cafeteria on one occasion to ask how she was doing. Since June 1984 until the commencement of this litigation, that single, brief, casual involvement with Mr. Grenier was the only contact that the plaintiff has had about this matter with any Weldon, Victoria Board, or School Board representative, employee, or official.
97In summary, I find that while and after the plaintiff was a student at Weldon until this litigation began, there were at Weldon at least three Victoria Board employees plus one college co-op student, who were aware in detail of the plaintiff’s allegations about Mr. Williamson’s sexual misconduct with the plaintiff. Those people were: Bob Grenier, a then 23-year-old college student who was on a student placement in the Weldon guidance department; Sandy Thompson, the then head of the Weldon guidance department; Jack DeBois, the then principal at Weldon; and Ross Smyth, the then vice principal at Weldon. In March 1984, all of these people became aware of the exact nature of the plaintiff’s allegations in great detail. Mr. Grenier continued to briefly counsel the plaintiff after she made her disclosure to him. Mr. DeBois took steps that led to Mr. Williamson tendering his resignation and leaving Weldon at the end of the 1983-84 school year. But apart from those steps, most of which took place in March 1984 and all of which were certainly finished by June 1984, nothing else was done by anybody at Weldon to provide help to the plaintiff and assist her with emotional damage, including possible depression, shame, guilt, self-blame, and embarrassment, that they ought to have thought might have been caused by Mr. Williamson’s sexual misconduct. There is no evidence and I find that no other Victoria Board or School Board representatives, employees, or officials ever did anything to help the plaintiff in this regard. Their actions were directed at protecting the Victoria Board or the School Board.
Negligence
98It was submitted by both the plaintiff and the School Board, and I agree, that school boards owe a duty of care to their students to protect them from unreasonable risk of harm at the hands of other members of the school community.
99The standard of care to be exercised by school authorities in providing for the supervision and protection of students for whom they are responsible is that school authorities are in loco parentis to students and as such must act as would a “careful and prudent parent.” [13] The standard of care must be considered in the context of the time period in which the alleged negligence occurred. The actions of the school authorities must be assessed in accordance with the standards of care prevailing at the time of the alleged negligence.
100The plaintiff submitted that the School Board was negligent for two primary reasons: first, the lack of support given to the plaintiff after she disclosed her allegations about Mr. Williamson’s sexual misconduct; and second, the failure to immediately remove Mr. Williamson from the school after the plaintiff’s disclosures.
Lack of Support
101As stated above, during the 1983-84 school year, teachers at Weldon noticed a negative change in the plaintiff’s behaviour. Due to their concern, teachers referred the plaintiff to the Weldon guidance department. The plaintiff was punctual and never missed a scheduled appointment with Mr. Grenier. When the plaintiff made her disclosure to Mr. Grenier, and in her later conversations with Ms. Thompson and Mr. DeBois, her distress arising from Mr. Williamson’s misconduct was apparent to all. In the note given to Mr. Grenier, in which the plaintiff first disclosed the allegations, the plaintiff wrote of crying and contemplating suicide. That note was read by Mr. Grenier, Ms, Thompson, Mr. DeBois, and, possibly, by other Weldon and/or Victoria Board representatives, employees, and officials. In that note, which was written for and delivered to Mr. Grenier, the plaintiff also wrote that she was “glad” the he “was here to handle this matter.” [14] Based on the evidence of Mr. Smyth, the contents of the sealed envelope, and his actions, I find that Mr. DeBois believed that the plaintiff was telling the truth. From these facts, I find that both Weldon and Victoria Board representatives, employees, and officials knew or ought to have known that it was likely that Mr. Williamson’s sexual misconduct had likely caused some emotional damage to the plaintiff and that she was looking for and amenable to somebody to help her with this emotional damage.
102When Mr. Grenier was talking to the plaintiff, he was an inexperienced 23-year-old college co-op student who had taken only a rudimentary course in counselling. During the 1983-84 school year, Ms. Thompson was in her first year as head of the Weldon guidance department. As such, she supervised three other guidance teachers (two were part-time) and Mr. Grenier. Ms Thompson had been a guidance teacher at Weldon since 1980, first part-time, then full-time. She had taken three university guidance courses prior to the 1983-84 school year. She saw the plaintiff only once. As previously described, that was on March 29, 1984, the day that the plaintiff gave her note to Mr. Grenier. The meeting was brief during which Ms. Thompson merely had the plaintiff confirm the truthfulness of her allegations. No counselling was provided.
103After making her disclosures to Mr. Grenier, the plaintiff continued as a student at Weldon for the remaining three months of that school year. Apart from one semester, the plaintiff was a Weldon student until she completed grade 13 in June 1986.
104After becoming aware in March 1984 of the plaintiff’s allegations about Mr. Williamson’s sexual misconduct, apart from one or two sessions with Mr. Grenier, nobody from Weldon or the Victoria Board suggested, arranged for, or provided any professional help or support to help the plaintiff with emotional damage that they knew or ought to have known might have been caused by Mr. Williamson’s sexual misconduct.
105Since and before March 1984, when the plaintiff first disclosed to Mr. Grenier the sexual misconduct of Mr. Williamson, Ontario school boards have been empowered by the Education Act to engage the services of psychiatrists, psychologists, and other professional support staff to assist students. [15] As stated above, it was known by at least three Weldon officials and by Mr. Grenier that: the plaintiff was having emotional problems as a result of Mr. Williamson’s sexual misconduct; and, the plaintiff had gone willingly, was amenable to, and was glad to have Mr. Grenier helping her with the matter. Mr. DeBois believed her allegations so strongly that he almost immediately asked Mr. Williamson for his resignation. Further, it was known or ought to have been known by Victoria Board officials that the plaintiff was likely suffering emotional difficulties as a result of Mr. Williamson’s sexual misconduct.
106In March 1984, teacher/student sexual contact was so seriously regarded that it was a basis for immediate firing of a teacher. Based on that degree of seriousness, I find that, at that time, it was known to school boards, including the Victoria Board, that firing of the teacher was required in such situations because of the damage that such sexual contact could cause to a student.
107Further, I accept the expert evidence of William Tucker that in that era, student teachers were trained at teachers’ college that they were not to touch students. Mr. Tucker’s testimony was not seriously challenged and I accept and find that in 1984, there was growing awareness of teacher/student sexual abuse.
108In summary, in March 1984, school boards were aware that teacher/student sexual activity might be harmful to the student. School boards were empowered to appoint psychiatrists and psychologists. There were three teachers in Weldon’s guidance department. A school nurse was available. Multiple Weldon and Victoria Board officials were aware of the plaintiff’s allegations about Mr. Williamson. Weldon’s principal, Mr. DeBois, believed her allegations. It was known or ought to have been known by multiple Weldon and Victoria Board officials that the plaintiff was likely suffering emotional difficulties as a result of Mr. Williamson’s sexual misconduct. Yet, after the plaintiff’s disclosures to Mr. Grenier, a 23-year-old college co-op student with only rudimentary counselling training, the only person who attempted to provide any further support to the plaintiff was Mr. Grenier. And he only saw her once or twice more before the 1983-84 school year ended. Nobody at Weldon or from the Victoria Board even talked to the plaintiff with a view to assist her through any possible emotional difficulties. There is no evidence that anybody at Weldon or the Victoria Board ever considered appointing a psychiatrist or psychologist to talk to the plaintiff in this regard. There is no evidence that anybody from Weldon or the Victoria Board ever considered suggesting to or asking the plaintiff about her seeing any trained guidance counsellor or psychiatrist or psychologist. After the 1983-84 school year, apart from one possible casual cafeteria conversation with Mr. Grenier, nobody from Weldon or the Victoria Board talked to the plaintiff about any emotional difficulties that she might be suffering as a result of Mr. Williamson’s sexual misconduct.
109Based on the above findings and in these circumstances, I agree with and accept the expert opinion of Mr. Tucker that, in March - June 1984, a careful and prudent parent (in loco parentis) standing in the shoes of those involved at Weldon and the Victoria Board would have made a referral to have the plaintiff access the support of a qualified counsellor such as a guidance counsellor or a psychologist. I am satisfied that, in March-June 1984, a careful and prudent parent, who knew of their child’s possible emotional difficulties caused by a teacher’s sexual misconduct, would have taken advantage of trained, available, professional assistance for their child. A careful and prudent parent would have at least suggested to or asked their child about taking advantage of trained, available, professional assistance. Although well-intentioned on his part, as a college co-op student, Mr. Grenier was able to provide only minimal, rudimentary counselling for the plaintiff. Both Weldon and the Victoria Board could have directed or appointed trained guidance counsellors or a psychiatrist or psychologist to assist the plaintiff. They could have suggested to or asked the plaintiff about accessing such assistance. But they did nothing of this nature. I agree with and accept the expert opinion of Mr. Tucker that in March-June 1984, Weldon and the Victoria Board fell below the standard of care by not seeking available counselling for the plaintiff and by not even suggesting to or asking her about such assistance. After the 1983-84 school year, the plaintiff was a student at Weldon until June 1986. At no time, from June 1984 until June 1986, did either Weldon or the Victoria Board ask her about or refer her to counselling. Therefore, the failure to meet the standard of care continued throughout the plaintiff’s remaining student years at Weldon.
110For those reasons, the Victoria Board failed to meet the standard of care to act as a careful and prudent parent of the plaintiff. Accordingly, the Victoria Board breached its duty owed to the plaintiff to protect her from unreasonable risk of harm caused by Mr. Williamson’s sexual misconduct. As discussed above, as the successor to the Victoria Board, the School Board is liable for that breach of duty.
The Failure to Immediately Remove Mr. Williamson
111After the plaintiff disclosed her allegations, Mr. Williamson continued to work at Weldon until the school year ended in June 1984. His work did not change. He continued working as the Weldon music teacher and band leader. He continued working in the same music room to which his office was attached. He was not subject to any restrictions.
112As stated above, on April 16, 1984, the plaintiff attended a meeting in the office of Principal DeBois and handwrote the note that he dictated to her. The plaintiff testified that as a result of what transpired at the meeting, she believed that Mr. Williamson would be resigning and leaving the school. I accept the plaintiff’s testimony and I find that when she left the office after the meeting, she believed that Mr. Williamson’s resignation was effectively immediately thereafter and that she would not likely see him in the school again.
113Very shortly after the April 16, 1984 meeting, the plaintiff became aware that Mr. Williamson was continuing as Weldon’s music and band teacher and that it appeared nothing had changed. It makes sense and I therefore accept the plaintiff’s testimony that it caused her some distress to see that Mr. Williamson was continuing to work at Weldon, as if nothing had happened, following her disclosures of his sexual misconduct and her belief that he was leaving Weldon immediately after April 16, 1984.
114The plaintiff argues that Weldon and Victoria Board officials knew or should have known that it would cause her distress to see Mr. Williamson continue working at Weldon as he did after she made her disclosures in March 1984. The plaintiff further submits that the Victoria Board could and should have exercised available options so that Mr. Williamson was no longer present at Weldon after she made her disclosures in March 1984. The plaintiff argues that the Victoria Board breached the duty owed to her by failing to immediately remove Mr. Williamson from Weldon and by allowing him to continue working at Weldon after she made her disclosures.
115The School Board argues that the decision to allow Mr. Williamson to continue until the end of the school year was made based on legal advice and that we should not second-guess that decision at this late date. For the reasons that follow, I disagree.
116As stated above, the principal, Mr. Debois, believed the plaintiff’s allegations. Also, as stated earlier, Weldon and Victoria Board officials knew or ought to have known that the plaintiff was suffering emotional distress as a result of Mr. Williamson’s sexual misconduct. Further, as the facts bear out and as found above, immediately after March 29, 1984, negotiations commenced between the Victoria Board and Mr. Williamson’s lawyer. Those negotiations very quickly arrived at the settlement agreement pursuant to which Mr. Williamson’s employment was terminated. There was no evidence of any intention to investigate as to whether the allegations were true. The only evidence was, and I find, that the negotiations were conducted only with a view towards terminating Mr. Williamson’s employment. Based on that, I find that Victoria Board officials believed the plaintiff’s allegations about Mr. Williamson’s sexual misconduct. Accordingly, to protect all students, including the plaintiff, the Victoria Board should have immediately and permanently removed Mr. Williamson from the school and terminated his employment. This course of action is supported by the evidence of Mr. Tucker.
117In this regard, I accept Mr. Tucker’s expert evidence. His evidence made sense, was unshaken during cross-examination, and there was no evidence to the contrary. He testified and I find that, based on standards of that era, Mr. Williamson should have been removed from the school immediately after the plaintiff disclosed Mr. Williamson’s sexual misconduct. Mr. Tucker testified and I accept that this could have been accomplished by removing Mr. Williamson from the school and suspending him with pay pending completion of any investigation or resolution of the matter. Having regard to the Victoria Board’s primary obligation to act as a careful and prudent parent and to protect students, I accept Mr. Tucker’s uncontroverted evidence that the health and wellness of all students, including the plaintiff, were Weldon’s and the Victoria Board’s primary concerns and prevailed over other concerns, including due process for the teacher, Mr. Williamson.
118As stated and found above, Mr. DeBois and the Victoria Board believed the plaintiff’s allegations about Mr. Williamson’s misconduct. Weldon and Victoria Board officials knew or ought to have known that the plaintiff was suffering emotional distress as a result of Mr. Williamson’s sexual misconduct. A settlement agreement was very quickly reached that ended Mr. Williamson’s employment with the Victoria Board. In these circumstances, when they believed the plaintiff’s allegations, the Victoria Board breached its duty owed to students, including the plaintiff, by allowing Mr. Williamson to continue teaching, without restrictions, at Weldon until the school year ended in 1984. With respect to the plaintiff, Weldon and Victoria Board officials should have realized that allowing Mr. Williamson to continue at Weldon would be more likely to further or at least continue the plaintiff’s emotional distress and likely add to it fear of possible retribution from Mr. Williamson. If Mr. Williamson was insisting on continuation of employment as a term of settlement, he should have been suspended with pay, an option available to the Victoria Board in 1984. When the Victoria Board believed the plaintiff’s allegations, no settlement should have been made that allowed Mr. Williamson to return to Weldon or, possibly, to any other Victoria Board school.
119For those reasons, I agree with and accept the expert opinion of Mr. Tucker that when the Victoria Board allowed Mr. Williamson to continue teaching at Weldon until the school year in June 1984, that was a failure of the Victoria Board to meet the standard of care of a careful and prudent parent. Accordingly, the Victoria Board breached its duty to protect its students, including the plaintiff, from risk of harm as a result of Mr. Williamson’s sexual misconduct. As the successor to the Victoria Board, the School Board is liable for that breach of duty.
Summary on Negligence of the Trillium Lakelands District School Board
120For the reasons stated above, the Victoria Board breached its duty owed to the plaintiff by: first, the lack of support given to the plaintiff after she disclosed her allegations about Mr. Williamson’s sexual misconduct; and second, the failure to immediately remove Mr. Williamson from the school after the plaintiff’s disclosures. As the successor to the Victoria Board, the School Board is liable for those breaches of duty.
Breach of Fiduciary Duty
121The plaintiff’s position is that the Victoria Board breached its fiduciary duty owed to the plaintiff as a result of the board’s mishandling of her disclosure about Mr. Williamson’s sexual misconduct.
122There is overlap in the evidence of the Victoria Board’s negligence and its breach of fiduciary duty. Additionally, the plaintiff submits that further evidence supporting the breach of fiduciary duty were: 1) the obtaining of the April 16, 1984 plaintiff’s handwritten note directing that her parents not be called; and 2) the Victoria Board’s failure to ensure that the plaintiff’s parents learned about her allegations.
123For the same reasons as with Mr. Williamson, I am satisfied that the Victoria Board owed a fiduciary duty to the plaintiff. The Victoria Board had power and discretion that it could and did exercise which could and did affect the plaintiff and her interests. As a student, the 16-year-old plaintiff was vulnerable to the board’s power and discretion. In these circumstances, the relationship between the Victoria Board and the plaintiff has all three general characteristics that the Supreme Court of Canada has stated are possessed by fiduciary relationships. [16]
124Further, the Victoria Board stood in loco parentis towards all students, including the plaintiff. It had an obligation to act in her best interests.
125In these circumstances, I find that the Victoria Board was in a fiduciary relationship with the plaintiff. Its fiduciary obligation was to act in her best interests. In carrying out its fiduciary obligation, the Victoria Board had the right and discretion to prescribe and undertake a course of reasonable conduct to promote the plaintiff’s best interests.
126For the reasons that follow, there is insufficient evidence to satisfy me on a balance of probabilities that the taking of the April 16, 1984 handwritten note or the failure to tell the plaintiff’s parents were a breach of the Victoria Board’s fiduciary duty owed to the plaintiff.
127At the time of her disclosures in March 1984 and for many years thereafter, the plaintiff did not want her parents to know of Mr. Williamson’s sexual misconduct. She was very firm and adamant about that during the entirety of her high school years at Weldon. She was 17 years old at the time of her disclosures. Her allegations were about sexual abuse that occurred when she was 16 years old. The Weldon officials were clearly conflicted about whether the plaintiff’s parents should be told about her allegations. Considering all of the evidence, the plaintiff has not satisfied me on a balance of probabilities that Weldon and Victoria Board officials did not undertake a course of reasonable conduct to promote the plaintiff’s best interests when they decided not to contact the plaintiff’s parents.
128However, it was the Victoria Board’s fiduciary duty owed to the plaintiff to put her interests ahead of those of Mr. Williamson and the interests of the board. As discussed above, when dealing with negligence, there were: 1) a failure to offer and/or provide appropriate trained counselling support for the plaintiff’s emotional damage; and 2) Mr. Williamson was allowed to continue teaching at Weldon, without restrictions, for the balance of the 1983-84 school year. For the same reasons as stated above when dealing with negligence, both of those bases for negligence were also breaches of the Victoria Board’s fiduciary duty owed to the plaintiff. Weldon and the Victoria Board put their interests and the interests of Mr. Williamson ahead of the best interests of the plaintiff. Those were clear breaches of the fiduciary duty owed to the plaintiff. However, for the following reasons, allowing Mr. Williamson to continue teaching at Weldon was a more serious breach of the Victoria Board’s fiduciary duty owed to all students, especially to the plaintiff.
129As stated earlier, the Victoria Board should never have allowed Mr. Williamson to return to Weldon after the plaintiff disclosed her allegations which were believed by Mr. DeBois and by the Victoria Board. But, as a term of the settlement with Mr. Williamson, the Victoria Board allowed him to continue. Since they believed the plaintiff’s allegations, the only reason to allow Mr. Williamson to continue teaching at Weldon was to enable the board to reach a settlement with Mr. Williamson. By agreeing to the term allowing him to continue teaching at Weldon in order to reach a settlement, the Victoria Board put the interests of the board (and, of Mr. Williamson) ahead of the interests of the students, particularly the plaintiff. This was a very serious breach of the fiduciary duty owed by the Victoria Board to all students and especially to the plaintiff.
Summary on Liability
130For the above reasons, the defendants are liable in damages to the plaintiff.
131Mr. Williamson committed the torts of assault, battery, sexual assault, and sexual battery. He also breached the fiduciary duty that he owed to the plaintiff.
132As the successor to the Victoria Board, the Trillium Lakelands District School Board is vicariously liable for Mr. Williamson’s improper conduct.
133In negligence, the Victoria Board breached duties owed to the plaintiff. The Victoria Board also breached its fiduciary duty owed to the plaintiff. As the successor to the Victoria Board, the Trillium Lakelands District School Board is liable for the plaintiff’s damages.
Damages
134Several heads of damages are requested by the plaintiff. Against both defendants, jointly and severally, the plaintiff seeks general and aggravated damages, damages for past and future loss of income, past and future care and incidental expenses. Additionally, she seeks punitive damages against Mr. Williamson only. I will first discuss the issue of joint and several liability.
Joint and Several Liability
135Punitive injuries are properly sought only against Mr. Williamson. Joint and several liability is sought with respect to all other claims for damages.
136Initially, as a result of Mr. Williamson’s sexual misconduct, the plaintiff sustained emotional and psychological injuries and other negative consequences. As discussed above, the School Board is vicariously liable for Mr. Williamson’s wrongful conduct. Accordingly, both Mr. Williamson and the School Board are jointly and severally liable for damages initially arising from Mr. Williamson’s sexual misconduct.
137The further issue is whether Mr. Williamson is jointly and severally liable with the School Board for all injuries sustained by the plaintiff after Weldon and the School Board became aware of Mr. Williamson’s wrongful sexual misconduct. After becoming aware of Mr. Williamson’s wrongful sexual misconduct, the conduct of Weldon and the Victoria Board was the equivalent of doing nothing. As discussed above, Weldon and the Victoria Board did not provide trained counselling support for the plaintiff and allowed Mr. Williamson to continue teaching at Weldon until the 1983-84 school year ended in June 1984. With respect to Mr. Williamson, his pleadings have been struck. There is no crossclaim against the School Board. In any event, there was insufficient, if any, evidence to enable a finding that certain of the plaintiff’s injuries were due solely to the conduct of Weldon and the Victoria Board. All of the plaintiff’s injuries emanate from Mr. Williamson’s sexual misconduct. The School Board is vicariously liable for Mr. Williamson’s sexual misconduct. In these circumstances, apart from punitive damages, both Mr. Williamson and the School Board are jointly and several liable for any injuries of the plaintiff.
138Accordingly, apart from punitive damages, Mr. Williamson and the School Board are jointly and severally liable for any and all injuries sustained by the plaintiff because of Mr. Williamson’s wrongful sexual misconduct.
General and Aggravated Damages
139In their submissions, counsel for both the plaintiff and the School Board dealt with general and aggravated damages as a single assessment. I am satisfied that is the proper approach. Accordingly, I will do the same.
140Plaintiff’s counsel submitted that general and aggravated damages should be awarded in the amount of $330,000. Counsel for the School Board acknowledged that the abuse endured and consequential damages of the plaintiff were fairly significant and submitted that $200,000 would be a fair assessment for her general and aggravated damages.
141The purposes of general damages in sexual assault cases are: to provide solace for the victim’s pain and suffering and loss of enjoyment of life; to vindicate the victim’s dignity and personal autonomy; and to recognize the humiliating and degrading nature of the wrongful acts. [17]
142The non-exhaustive list of factors to be considered when assessing general damages for sexual assault include:
(i) the circumstances of the victim at the time of the events, including the victim’s age and vulnerability; (ii) the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were; (iii) the circumstances of the defendant, including age and whether he or she was in a position of trust; and (iv) the consequences for the victim of the wrongful behaviour including ongoing psychological injuries. [18]
143I will now address these factors.
144As discussed earlier, at the time of Mr. Williamson’s wrongful sexual misconduct, the plaintiff was only 16 years old and totally inexperienced sexually. Mr. Williamson was at least 15 years older than the plaintiff and far more mature and experienced. The plaintiff was Mr. Williamson’s student and a member of the school band that he led. He had power over her. He was in a position of trust to her and she trusted him. There were family difficulties in the plaintiff’s home and she relied on Mr. Williamson for assistance. In short, the plaintiff was a very vulnerable victim. She was extremely confused why this older man, who she liked and trusted, was doing these things to her.
145The abuse involved 10 proven incidents that occurred over a period of four months. The incidents occurred in Mr. Williamson’s vehicle or in his Weldon office that adjoined the music classroom/band practice room. The incidents were preceded by a period of grooming over several months by Mr. Williamson. Planning was involved. Mr. Williamson created opportunities for the abuse or used everyday circumstances as a platform for abuse.
146The first incident bears some examination. Mr. Williamson planned the incident by ensuring that he was alone with the plaintiff. It was late at night. The plaintiff was dozing in Mr. Williamson’s vehicle. She was taken to a secluded, wooded area. She did not know where they were. The incident then took place as described earlier in these reasons. It was an unexpected and painful introduction to sexual activity. Then she was dropped off at her home late at night. The incident was horrible for the plaintiff. It was extremely invasive.
147All of the remaining incidents also demonstrate a degree of planning. Those incidents were also degrading to the plaintiff. She was very ashamed by every incident. She was exposed to the possibility that her parents might become aware. For the in-school incidents, Mr. Williamson asked her to come alone to his office in front of other students, thereby exposing her to the possibility of embarrassment if other students became suspicious or aware.
148All of Mr. Williamson’s sexual misconduct endured by the plaintiff was invasive and degrading, often highly so. The plaintiff was left confused, anxious, embarrassed, and ashamed. Her self-confidence crumbled. She felt stupid and wrongly blamed herself for the incidents having occurred.
149Mr. Williamson’s sexual misconduct ended in June 1983. Throughout that summer, the plaintiff thought constantly about and could not forget what Mr. Williamson had done. She had suicidal ideation. All of these were new feelings to her.
150In September 1983, the plaintiff returned to Weldon for grade 12. It bothered her and made her nervous to see Mr. Williamson, who was still the music teacher and band leader. He made sexual advances to her. Although she loved music and band, because of her emotions due to Mr. Williamson’s previous sexual misconduct and his continuing advances, she quit band and dropped music.
151During the grade 12 year, the plaintiff had difficulties sleeping, nightmares, and flashbacks of what Mr. Williamson had done to her the previous school year. She worried about bumping into Mr. Williamson, She began drinking and skipping classes. She still wanted to go to university and knew that grade 12 marks were important, but her marks deteriorated.
152As discussed earlier, teachers noted that she had changed, becoming unhappy, withdrawn, and less involved. In March 1984, they referred her to the guidance department as discussed above. After making her disclosures, the plaintiff felt relieved that adults were now helping her. Then, she was surprised when she saw Mr. Williamson continue at Weldon for the balance of the school year. She felt that she had been lied to by the school officials who she believed had told her that he was resigning and leaving the school. She felt very uncomfortable that he was there and was terrified that he would exact revenge on her. She took steps to avoid bumping into him, including eating her lunch alone at her locker and avoiding the corridor near the music room. She did poorly at school and skipped more classes. She only got three credits that school year and, unlike all her friends, did not graduate from grade 12.
153In the summer of 1983, the 16-year-old plaintiff, when drunk, had vaginal intercourse for the first time. It was a single experience with Carl O’Connell, a man about 15 years older than she. He was similar in age and profession (teaching) to Mr. Williamson. I accept the unchallenged expert evidence of Dr. Candice Monson that, based on those facts and the literature of re-victimization, the plaintiff chose Mr. O’Connell as a consequence of the abuse she endured from Mr. Williamson.
154The following summer, 1984, the plaintiff began dating Mr. O’Connell. Their relationship continued in the fall of 1984 and led to her quitting school and moving from her parents’ home, the only home in which she had resided since the family had moved there when she was a very little girl.
155The plaintiff returned to Weldon in January 1985 and eventually completed both grades 12 and 13. Her relationship with Mr. O’Connell continued throughout and they married in 1987. Both expert witnesses, Dr. Monson and Dr. Phillip Klassen, testified that her the plaintiff’s choice of Mr. O’Connell as a partner was due or at least contributed to by the impact of Mr. Williamson’s abuse.
156The plaintiff’s marriage with Mr. O’Connell was very difficult. She endured physical and mental abuse. The circumstances of the marriage materially contributed to her being unable to complete university. The circumstances of the marriage have also materially contributed to long term employment difficulties for the plaintiff. Considering all of the evidence, I accept the evidence of both Dr. Monson and Dr. Klassen, that the plaintiff’s relationship with Mr. O’Connell was very impactful and toxic and that it has affected her interpersonal relationships, education, and employment history.
157I find that, from the time of the first incident in March 1983 and continuing indefinitely thereafter, the plaintiff suffered many significant emotional and psychological problems that she would not have otherwise suffered but for her being the victim of Mr. Williamson’s sexual misconduct. These problems included fear of further incidents, of discovery, and of revenge. Guilt, shame, wrongfully thinking that she was responsible, withdrawal, self-harm, and suicidal ideation were other problems. She began skipping classes and drinking. Her educational dreams dissipated. She entered into the aforesaid very negative relationship and marriage with Mr. O’Connell. All of these problems arose from the sexual misconduct of Mr. Williamson.
158Two expert witnesses, Dr. Monson and Dr. Klassen, testified about those problems. Their opinions were not that dissimilar. I do not wholly accept either of their opinions. However, based on their opinions and all of the evidence, I am satisfied that some of those serious emotional and psychological problems continue to the present date. I will now discuss some of those problems.
159The plaintiff has suffered from depression as a result of the abuse. Her depression waxes and wanes, but it is always present. Sometimes her depression has been very severe and disabling. Currently, her depression is fairly severe. Often, she is unable to leave her room.
160Hand in hand with the depression is her lack of self-esteem. Throughout her adult life, there has been a pattern of underemployment. Most recently, the plaintiff was employed as a taxi driver. The plaintiff is intelligent and capable of far more intellectually challenging work.
161The plaintiff has suffered from varying degrees of anxiety since the abuse occurred and at times in the past may have suffered from panic disorder.
162It was after the abuse that, for the first time, the plaintiff had suicidal ideation which has occurred sporadically since then together with self-harm (cutting). The plaintiff last cut herself in 2016.
163Notwithstanding that he spent only a brief time with the plaintiff, Dr. Klassen opined that the plaintiff may meet the criteria for post-traumatic stress disorder (PTSD). However, unlike Dr. Monson, Dr. Klassen was not of the opinion that the plaintiff has suffered from PTSD throughout her life after the abuse occurred. But Dr. Klassen acknowledged that because of the abuse, the plaintiff has suffered intrusive distressing memories and recurrent distressing dreams.
164Dr. Monson spent far more time meeting and talking with the plaintiff than did Dr. Klassen. Her opinion is more consistent with the evidence. Accordingly, I accept Dr. Monson’s opinion that since the abuse, the plaintiff has experienced intrusive PTSD symptoms with a chronic waxing and waning course throughout her life. Currently, I find that the plaintiff often experiences distressing and unwanted memories, both provoked and unprovoked, sometimes multiple times per day. The plaintiff experiences sleep difficulties, including very upsetting nightmares, sometimes multiple times per week. As stated above, she often stays in her room for very extended periods of time.
165While she was a high school student at Weldon, officials at Weldon and the Victoria Board had the opportunity to attempt to assist the plaintiff and possibly reduce the short and long-term impact of Mr. Williamson’s sexual misconduct. Apart from the very minimal assistance that she received from Mr. Grenier, it was the plaintiff alone who had to deal with the emotional and psychological problems caused by Mr. Williamson’s sexual misconduct. Apart from Mr. Grenier, nobody from Weldon or the Victoria Board spoke to the plaintiff in a counselling fashion to attempt to recognize the impact of the abuse, appreciate her resultant problems, and assist her with those problems. Nobody from Weldon or the Victoria Board offered counselling services or suggested to the plaintiff that counselling services might be helpful and could be provided. As stated earlier, neither the police nor her parents were made aware of Mr. Williamson’s sexual misconduct and, accordingly, they were unable to offer assistance. The plaintiff was left on her own.
166After becoming aware of Mr. Williamson’s wrongful sexual misconduct, the conduct of Weldon and the Victoria Board was the equivalent of doing nothing. If Weldon or the Victoria Board had done something, the plaintiff’s problems caused by Mr. Williamson may have been alleviated. But, by doing nothing, Weldon and the Victoria Board allowed the problems to continue and possibly worsen over time.
167The circumstances and nature of the incidents of abuse are themselves aggravating. The planning and breach of trust by Mr. Williamson are aggravating. The Victoria Board’s conduct in placing its interests and those of Mr. Williamson ahead of the plaintiff’s interests are aggravating as was the Victoria Board’s failure to suggest or provide counselling to the plaintiff even though they knew or ought to have known that the plaintiff had suffered and was suffering difficulties due to the abuse. All of these factors must be considered when assessing the award to be made for the plaintiff’s general and aggravated damages.
168It is impossible to separate which of the plaintiff’s damages flowed from the intentional torts, from negligence, or from breach of fiduciary duty. It is similarly impossible to divide responsibility for the plaintiff’s general and aggravated damages as between Mr. Williamson and the School Board. Also, in this case, due to the School Board’s vicarious liability, as discussed above, it is unnecessary to do so. Accordingly, only a single award of general and aggravated damages, jointly and severally payable by Mr. Williamson and the School Board, shall be made for all of the plaintiff’s injuries whether due to an intentional tort, negligence, or breach of fiduciary duty.
169Concerning the amount of general and aggravated damages, counsel for both the plaintiff and the School Board provided me with several cases. As is most often the case, no case was exactly on point. However, it is of note, that in cases of childhood sexual abuse, the amount of awards for general and aggravated damages have increased over time as society and the courts have become increasingly aware of the very serious, long-lasting damage caused by such abuse. Just recently, the Supreme Court of Canada has again acknowledged the seriousness of childhood sexual abuse and, for criminal matters, the court stated that longer sentences should be given for such offences. [19] I will refer to some of the more recent civil cases.
170In 2018, in Zando v. Ali, 2018 ONCA 680, the Court of Appeal approved the trial judge’s finding that the appropriate range of general and aggravated damages for adult single incident sexual assault was $144,000 to $290,000. [20]
171In 2019, in McCabe v. Roman Catholic Episcopal Corporation, 2019 ONCA 213, the Court of Appeal upheld a jury award of $250,000 for general and aggravated damages. That case involved a priest’s sexual abuse of an 11-year-old boy. Reviewing the facts of that case, as set out in the reasons from the Court of Appeal, the actual incidents of abuse appear to be less severe than Mr. Williamson’s abuse of the plaintiff in this case. However, the long-lasting damage due to the abuse may have been as or more severe than in the present case.
172In 2019, in MacLeod v. Marshall, 2019 ONCA 842, a jury awarded $350,000 for general damages and $75,000 for aggravated damages. That case involved a priest sexually abusing a young boy. Those awards were not appealed. While that case involved significantly more incidents of sexual abuse, from the Court of Appeal’s reasons it is impossible to ascertain the nature of those incidents or the exact nature of the long-lasting damage suffered by that plaintiff.
173Accordingly, from my review of the cases and taking into account increasing awareness of the damage caused by childhood sexual abuse, I am satisfied that for cases involving repeated sexual assaults on a child by a person in a position of trust, the appropriate range for general and aggravated damages is from $150,000 to $450,000. As always, there are less serious and more serious cases that would fall outside of that range.
174In assessing the award for general and aggravated damages, I have taken guidance from the decisions in McCabe and MacLeod referred to above. I am satisfied that due to the greater number and nature of incidents and with relative similarity of severity of long-lasting damage, the present case warrants a higher award for general and aggravated damages than was awarded in McCabe. But, considering the much greater number of incidents in MacLeod, this case warrants a lesser award for general and aggravated damages than was awarded in Macleod.
175I have considered the factors to be considered when assessing general and aggravated damages for childhood sexual abuse and the applicability of those factors to the present case. I have found the range of such damages for cases such as the present case. I have compared the present case with the cases submitted to me by counsel and considered the submissions of counsel. After doing so and considering all of the evidence, I assess the plaintiff’s general and aggravated damages in the amount of $300,000, payable jointly and severally by Mr. Williamson and the School Board.
The Loss of Income Claim
176The plaintiff claims damages for loss of both past income and future income. The plaintiff’s position is that if the sexual abuse had not occurred, she would have completed university and become a school teacher. She submits that as a school teacher, she would have earned more than she has earned and will earn. The plaintiff requests damages exceeding $1,000,000 for her income loss due to Mr. Williamson’s sexual abuse.
177The School Board submitted that the plaintiff has not proven a claim for loss of income arising out of Mr. Williamson’s abuse. The School Board submitted that if I determined that the plaintiff should be compensated for income loss, compensation should be an award for loss of competitive advantage of $150,000, being the highest end of what the School Board submitted was the usual $50,000 to $150,000 range for such awards.
178The objective of awarding damages for past and future loss of income is to put the plaintiff in the same financial position as she would have been in, had she not been sexually abused. Past loss of income is income loss between the date of the defendant’s wrong and trial, while future loss of income is loss of income after trial. [23]
179In the present case, with respect to the plaintiff’s claims for economic loss following sexual abuse, both past and future loss of income claims involve a consideration of hypothetical events because the plaintiff had not earned income prior to the assault. The court must therefore determine not what did happen in the past but the chance that something would have happened, had the sexual abuse not happened in the past. This requires a determination of loss of earning capacity, not the loss of actual earnings. Since the plaintiff is not required to prove hypothetical events on a balance of probabilities, the burden of proof for entitlement is that of real and substantial possibility. [24]
180As stated above, the plaintiff’s position is that if the sexual abuse had not occurred, she would have completed university and become a school teacher. She submits that as a school teacher, she would have earned more than she has earned and will earn. These actual past earnings include any money gained from the business of her ex-husband and herself and from employment. The evidence is vague or missing about money gained or earned from that business and much of her past and current employment. However, I accept the unchallenged expert evidence of Ian Wollach about the amount that the plaintiff could have earned as a school teacher or through other employment after completing university. Considering the evidence of Mr. Wollach and all of the evidence, including evidence about money earned or to be earned by the plaintiff from various sources, I am satisfied on a balance of probabilities and I find that all such money earned or to be earned by the plaintiff is less than what she would have earned had she completed university and thereafter found employment, whether as a school teacher or otherwise. Accordingly, in order to establish entitlement to past and future economic loss, the plaintiff need only prove that there is a real and substantial possibility that the sexual abuse caused her economic loss. [25]
181The evidence is clear, and I find that for years prior to Mr. Williamson’s abuse, the plaintiff had aspirations to attend university and become a school teacher. Her elementary school marks were excellent. While her high school marks were lower, prior to the abuse her marks remained good and her enthusiasm and goal of attending university to become a teacher continued.
182The abuse took place in May-June 1983. For the remainder of her high school years, the plaintiff was a changed person. In the summer of 1983, as found above, as a result of the abuse, she made a bad choice when she got drunk for the first time and chose Carl O’Connell as her first partner for vaginal sexual intercourse. Then, in the 1983-84 school year, she began skipping classes. She was drinking. Her marks deteriorated. As stated above, her attitude and behaviour changes were noticed by teachers with concern that caused them to refer her to the guidance department which eventually led to her disclosure about the abuse.
183In the summer of 1984, the plaintiff met Mr. O’Connell again. They began dating, which eventually led to their marriage. As found above, this was as a result of the abuse suffered by the plaintiff at the hands of Mr. Williamson. The abuse led to the abusive marriage and its problems.
184Ultimately, the plaintiff’s choices following and as a result of Mr. Williamson’s abuse materially contributed to her sporadic attempts at university and the ultimate result of her never completing a university degree.
185I am satisfied that without Mr. Williamson’s sexual abuse, it was a near certainty that immediately following high school the plaintiff would have attended university and obtained a university degree. If she had obtained a university degree, she would have earned more money than she has earned to date and is likely to earn in the future. Accordingly, the plaintiff has easily satisfied me that there is a real and substantial possibility that Mr. Williamson’s sexual abuse has caused her economic loss.
186In paragraphs 23 and 24 of MacLeod v. Marshall, the Court of Appeal set out the method and the factors to be considered when quantifying the economic loss caused by sexual abuse.
187As stated earlier, the expert evidence of Mr. Wollach was unchallenged and accepted by me as evidence of earnings in three scenarios: first, earnings for a school teacher; second, earnings for a university graduate, not a school teacher; and third, earnings for a high school graduate. While the evidence of Mr. Wollach was useful and provided some guidance, the frailties in the evidence before me causes several problems in quantifying the plaintiff’s income loss.
188The plaintiff’s primary position was based on her goal to become a school teacher. However, there was:
- insufficient evidence to enable me to find what marks the plaintiff would have obtained while completing a full university degree program;
- no evidence about the university marks required for admission to teachers’ colleges;
- no evidence about the number of positions available at teachers’ college; and
- no evidence about the availability of teacher positions.
189Due to the lack of evidence, I am unable to assess the percentage chance that the plaintiff would have become a school teacher and earned a school teacher’s income.
190As a secondary position, the plaintiff submitted that but for Mr. Williamson’s abuse, she would have at least become a university graduate and earned income accordingly.
191As found above, but for Mr. Williamson’s abuse, it was nearly certain that, after completing high school, the plaintiff would have completed a university degree. I can assess the percentage chance of that occurring.
192I can also assess the usual general negative contingencies with respect to earning of income. Also, in this case, there are special contingencies that must be considered. There was a professors’ strike that interfered with completion of a university year. Also, the plaintiff clearly enjoyed being at home and raising her children and was willing to forego some amount of income in order to do so. Additionally, the plaintiff’s 2004 motor vehicle accident and her attitude at that time towards returning to work are additional factors to consider. However, I am satisfied that I could assess the usual general negative contingencies and this case’s particular special contingencies and their effect on the plaintiff’s income-earning. Then, with the guidance of Mr. Wollach’s evidence, I could take into account the usual general and the special contingencies and assess what income the plaintiff had a real and substantial possibility of earning as a university graduate but for Mr. Williamson’s abuse.
193However, there is other evidence and lack of evidence that cause concerns. As stated earlier, there is a significant lack of evidence about the amount of money that the plaintiff has actually earned since high school. These monies include her various jobs and income from the family business operated by her and Mr. O’Connell.
194There was sufficient evidence to enable me to find with confidence that, each year, the plaintiff has always earned and will always earn less income than she would have earned as a university graduate. Still, the evidence and lack of evidence are such that I am unable to find with any accuracy what amount of money she has actually earned to date. I am unable to find, each year, the difference between the amount she actually earned and the amount that she would have earned as a university graduate. Some years she may have actually earned nothing, while other years she may have earned $5,000 or $10,000 or $20,000, or some other amount less than she would have earned as a university graduate. It is impossible even to find a cumulative total or to average on a yearly basis the amount that the plaintiff has actually earned.
195In these circumstances, I am unable to assess the difference in the plaintiff’s past and future income as a university graduate and the income that she has actually earned to date and has a real and substantial possibility of earning in the future. The plaintiff’s past and future income loss cannot be calculated with certainty or mathematical precision.
196However, as stated earlier, the plaintiff has suffered and will suffer a loss of income due to Mr. Williamson’s abuse. I must do my best, on the evidence before me, to assess that loss. Based on findings made and discussed earlier in these reasons, further findings can be made supporting that, due to Mr. Williamson’s abuse, the plaintiff has suffered a loss of competitive advantage as discussed by the British Columbia Court of Appeal in Kwei v. Boisclair. [26] Considering all of the evidence, for the following reasons, I am persuaded that due to Mr. Williamson’s abuse, the plaintiff has suffered a loss of competitive advantage.
197As found and discussed above, since and as a result of Mr. Williamson’s abuse, the plaintiff has suffered and continues to suffer emotional and psychological damage. She is less than a whole person. The evidence satisfies me that she has been and will continue to be disadvantaged in the employment market place. There have been and based on her current and likely future condition will continue to be fewer opportunities available for her as a consequence of the damage suffered because of the abuse. Since and as a result of the abuse, the plaintiff has been and will continue indefinitely to be at a very substantial competitive disadvantage in obtaining and maintaining employment or getting promotions when she does have a job.
198The plaintiff has had a very substantial loss of competitive advantage for many years since the abuse occurred in 1983 when she was 16 years old. Considering the impact of this loss of competitive advantage and the large number of years that she has suffered this loss of competitive advantage, I am satisfied that the amount of her award for loss of competitive advantage exceeds the upper end of the range suggested by counsel for the School Board.
199In summary, the plaintiff has satisfied me that Mr. Williamson’s sexual abuse caused a very substantial competitive employment disadvantage that has and will continue to cause income loss for the plaintiff. I have considered the impact of general and special contingencies. After considering all of the evidence, in order to fairly and reasonably compensate the plaintiff for her loss of competitive advantage due to Mr. Williamson’s sexual abuse, an award of $200,000 will be made, payable jointly and severally by Mr. Williamson and the School Board which, as found above, is vicariously liable for Mr. Williamson’s sexual misconduct.
Punitive Damages
200The plaintiff seeks punitive damages against Mr. Williamson only. Plaintiff’s counsel submitted that $100,000 would be an appropriate amount for punitive damages.
201Earlier in these reasons, I have described the sexual abuse that Mr. Williamson perpetrated upon the plaintiff. It was horrendous. He took advantage of his position. He utilized planning and grooming. The plaintiff’s introduction to sexual activity was at the hands of an older man who took advantage of the plaintiff’s youth, vulnerability, and naivety. He debased and degraded the plaintiff due to the nature of the activities and the locations where it took place. His conduct caused the plaintiff immediate and long-lasting permanent emotional and psychological damage.
202In these circumstances, it is without hesitation that I find that Mr. Williamson’s misconduct was high-handed, malicious, arbitrary, and highly reprehensible that departs to a marked degree from ordinary standards of decent behaviour. The community denounces and will not condone behaviour such as that of Mr. Williamson. He and others must be deterred from similar misconduct in the future. I am not satisfied that the other awards for damages made herein against Mr. Williamson will adequately achieve the necessary objectives of retribution, deterrence, and denunciation. In these circumstances, an award for punitive damages is required.
203I have considered:
- Mr. Williamson’s egregious conduct;
- that there were multiple incidents over a period of three or four months;
- that the sexual misconduct was planned, deliberate, and involved grooming;
- the steps taken by Mr. Williamson to hide the sexual misconduct indicating his knowledge of the wrongfulness of his conduct;
- the very significant, almost certainly irreparable harm that his conduct has caused;
- the other damage awards being made in this judgment; and
- awards for punitive damages in other cases of repeated childhood sexual abuse by a person in a position of trust.
204In all of the circumstances of this case, in order to adequately achieve the necessary objectives of retribution, deterrence, and denunciation, I would have been inclined to award at least $150,000 for punitive damages. However, I will limit the award to the amount requested by plaintiff’s counsel.
205Accordingly, an award for punitive damages will be made against Mr. Williamson in the amount of $100,000.
Past Care and Incidental Expenses
206Counsel for each of the plaintiff and the School Board agreed and I am satisfied, that due to Mr. Williamson’s abuse, the plaintiff had past care and incidental expenses of $4,122.06 as follows: [27]
Subrogated OHIP claim $2,750.00 Prejudgment interest thereon $114.58 Prescriptions for mental health medications $850.00 Prejudgment interest thereon $36.48 Dental treatment $371.00 Total past expenses $4,122.06
207Accordingly, based on my previous determination of vicarious liability, judgment in that amount shall go jointly and severally against Mr. Williamson and the School Board.
Future Care and Incidental Expenses
a) Counselling-related expenses
208While they disagreed on the extent of psychological damage and how much was due to Mr. Williamson’s abuse, both Dr. Monson (the expert witness psychologist) and Dr. Klassen (the expert witness psychiatrist) agreed that the plaintiff has continuing psychological damage and recommended future treatment for the plaintiff as a result of Mr. Williamson’s abuse.
209Dr. Monson opined that the plaintiff required four years of various types of therapies. For the first three years, Dr. Monson opined that weekly therapy was required. Dr. Monson’s evidence was that the total professional fees for such therapy would be $62,400. [28]
210Dr. Klassen was of the opinion that the plaintiff’s psychological difficulties, due to Mr. Williamson’s abuse, were less severe than Dr. Monson believed. Also, Dr. Klassen was less confident in the usefulness of therapy for the plaintiff’s problems. Therefore, Dr. Klassen recommended less frequent therapy over a period of no more than two years, although in cross-examination he did acknowledge that therapy over a longer period of time may be required. Based on Dr. Klassen’s evidence, counsel for the School Board submitted that $10,000 should be awarded for future psychological expenses.
211Dr. Monson has seen or spoken to the plaintiff on more occasions and for longer periods of time than has Dr. Klassen. Also, Dr. Monson’s expertise and practise is more-directly related to the plaintiff’s psychological issues. I was persuaded by Dr. Monson’s evidence that considering the deep-seated problems and length of time that they were left untreated, that the plaintiff will require more treatment than Dr. Klassen testified was necessary. I am satisfied that the plaintiff requires four years, possibly longer, of psychological therapy.
212Dr. Klassen is very experienced and opined that, for the plaintiff, effective therapy need not be on a weekly basis. Accordingly, I was not persuaded that weekly therapy, as recommended by Dr. Monson, was necessary. Where Dr. Monson has recommended weekly therapy for individual psychological services or group therapy, I am satisfied that effective therapy can be achieved by bi-weekly sessions.
213Both experts agreed that the plaintiff has difficulties with interpersonal relationships due to Mr. Williamson’s abuse. I am satisfied that she would benefit from counseling to address that problem. However, her current relationship seems to be very strong with a very understanding partner. Also, individual and group therapy may assist in addressing the plaintiff’s problems with interpersonal relationships. Accordingly, I am satisfied that while couples counseling would be of assistance, to be effective it is only required on a monthly basis for the amount of time recommended by Dr. Monson.
214Based on those findings, considering all of the evidence, and for those reasons, I assess and award $30,000 for future care costs attributable to professional counseling fees.
b) Computer Request
215The plaintiff requests $1,200 for a computer “to facilitate video therapy sessions and reduce travel/mileage costs” for therapy.
216There was no evidence to support this request, but it makes sense and I am satisfied that there is a real and substantial possibility that a computer would assist the plaintiff’s individual therapy while, at the same time, reducing the mileage expenses of travel from Lindsay to Whitby for therapy sessions.
217There was no evidence about costs of computers. However, I feel confident in taking judicial notice that computer prices vary widely and that a computer satisfactory for the plaintiff’s therapy purposes could be bought for about $600.
218Accordingly, $600 is awarded for acquisition of a computer as a future care cost.
c) Mileage for Individual Therapy Attendances
219The plaintiff requests $1,540.48 for mileage costs of quarterly attendances in Whitby for individual therapy.
220There was no evidence to support this request, but I am satisfied that there is a real and substantial possibility that the plaintiff will incur some mileage expenses in order to attend individual therapy sessions with Dr. Monson in Whitby. I am satisfied with and accept the accuracy of the plaintiff’s submissions as contained in Exhibit H.
221Accordingly, $1,540.48 is awarded for the future mileage expenses to be incurred to attend individual therapy.
d) Future Health Medications
222The plaintiff has requested $212.50 for future mental health medications for the next two years.
223The School Board has consented to an award for previous mental health prescriptions in the amount of $850. Based on all of the evidence, I am satisfied that due to Mr. Williamson’s abuse, there is a real and substantial possibility that the plaintiff has suffered emotional and psychological injury that will require medications. Pro-rating the amount to which the School board consented for past medications, I am satisfied that $212.50 is an appropriate award for the plaintiff’s future medications required due to Mr. Williamson’s abuse.
e) Restorative Dental Work
224The plaintiff requests $28,326.00 for restorative dental work. This request was supported by the expert evidence of Dr. Sun, a dentist, and Dr. Monson.
225Dr. Monson’s evidence was that all of the restorative dental work was necessary due to the emotional and psychological damage caused by Mr. Williamson’s abuse of the plaintiff.
226But, Dr. Sun testified to the effect that there were many possible reasons, unrelated to Mr. Williamson’s abuse, that could explain the plaintiff’s dental problems.
227There was a lack of evidence that would have been useful. There was no third-party evidence about the state of the plaintiff’s teeth prior to the abuse. There was no evidence about how one might have expected the normal course of the plaintiff’s dental condition to transpire over time. It is possible that the plaintiff’s dental condition is entirely due to reasons unrelated to Mr. Williamson’s abuse.
228However, as found and discussed above, Mr. Williamson’s abuse has sporadically caused the plaintiff to be socially withdrawn to various degrees over time. Sometimes, she feels incapable of leaving her home. Also, as discussed above, the abuse has caused the plaintiff income loss. In these circumstances, I am satisfied that there is a real and substantial possibility that due to Mr. Williamson’s abuse, the plaintiff may not have paid proper attention to her teeth and dental office attendances and that some dental damage resulted.
229I have considered the many possible causes of the plaintiff’s dental problems and I have assessed the percentage chance that she would have suffered those problems and need restorative work but for Mr. Williamson’s abuse having occurred. To quantify the plaintiff’s damages, I have considered the degree of probability that those damages are due to Mr. Williamson’s abuse. After doing so, I am satisfied and assess the plaintiff’s damages and requirement for compensation for dental work in the sum of $5,000.
f) Educational/Vocational Training
230The plaintiff has requested $18,000 as damages to allow her to complete a Graphic Arts program at the local community college.
231As found above, it was nearly certain that the plaintiff would have completed university but for Mr. Williamson’s abuse. Dr. Monson testified and I agree that further post-secondary education would assist the plaintiff in overcoming the problems that Mr. Williamson’s abuse caused.
232However, the plaintiff’s evidence was that she was more interested in writing than in graphic arts. This is consistent with her previous wishes.
233Further, there was no third-party evidence about the costs of appropriate post-secondary education.
234Accordingly, although post-secondary education would assist the plaintiff in overcoming problems caused by Mr. Williamson’s abuse, there is insufficient, if any, evidence to enable me to quantify the amount of said damages.
235Accordingly, no award shall be made for future post-secondary education costs.
Summary on Future Care and Incidental Expenses
236For the above reasons, the plaintiff is awarded the following for future care and incidental expenses, all payable jointly and severally by Mr. Williamson and the School Board:
a) $30,000 for future professional counseling fees; b) $600 for acquisition of a computer; c) $1,540.48 for mileage expenses to be incurred to attend individual therapy; d) $212.50 for mental health medications; and e) $5,000 for restorative dental work.
237The total of those amounts is $37,352.98 which is awarded to the plaintiff for future care and incidental expenses, all payable jointly and severally by Mr. Williamson and the School Board.
Pre-Judgment Interest
238In this case, there are two claims for pre-judgment interest. First, pre-judgment interest on the non-pecuniary awards, namely, the general and aggravated damages and the punitive damages. Second, pre-judgment interest on the requested award for past income loss.
239With respect to the non-pecuniary awards, the plaintiff submitted that pre-judgment interest should run from December 27, 1996 at the rate of 3 percent per annum. The School Board submitted that such pre-judgment interest should run from January 1, 2007 at the rate of 1.3 per cent per annum.
240Section 128(1) of the Courts of Justice Act [29] (CJA), provides for pre-judgment interest calculated from the date that the cause of action arose. Section 130 of the CJA provides a judge with discretion when determining both the pre-judgment interest rate and the time period for such interest. When exercising that discretion, the factors in s. 130(2) of the CJA must be considered.
241For historical sexual assault cases, there are various approaches to determine the date that the cause of action arose. Discoverability is the most common approach to determine when the cause of action arose. That is, the claim is discovered on the day that the plaintiff realizes that harm has been suffered because of the sexual assaults. [30] The Supreme Court of Canada has said this awareness will be presumed to occur when the plaintiff received therapeutic assistance. [31] Based on this law, I agree with plaintiff’s counsel that in this case, the plaintiff’s claim was discovered on December 27, 1996, when she saw Mr. Williamson on television causing her to very shortly thereafter seek professional therapeutic assistance for his sexual assaults.
242The presumptive applicable interest rate for non-pecuniary damages is five percent. [32] Acknowledging my discretion and based on the fluctuation in pre-judgment interest rates since 1997, plaintiff’s counsel submitted that three percent per annum would be appropriate for pre-judgment interest on the plaintiff’s non-pecuniary awards.
243The School Board has asked me to exercise my discretion both with respect to the time period and interest rate of pre-judgment interest on the non-pecuniary awards. Taking some guidance from the Court of Appeal’s recent MacLeod decision, the School Board submitted that pre-judgment interest on the non-pecuniary awards should run from January 2007 at the rate of 1.3 percent per annum.
244The reasons in MacLeod do not indicate whether there was any issue over the time period of pre-judgment interest. In this case, for the reasons that follow, I am not persuaded that I should exercise my discretion to reduce the time period of pre-judgment interest on the non-pecuniary awards. The plaintiff has suffered very significant harm due to Mr. Williamson’s abuse, since the abuse first occurred in 1983. Notwithstanding that, based on discoverability, her cause of action and pre-judgment interest only arose on December 27, 1996. Her marriage to Carl O’Connell was a result of the harm caused by Mr. Williamson’s sexual misconduct. That marriage may have delayed the plaintiff realizing the harm caused by Mr. Williamson’s sexual misconduct. To reduce the plaintiff’s compensation by changing the usual pre-judgment interest time period seems contrary to fairness as: 1) she is already doing without interest on damages for at least 13 years, from 1983 to 1997; and 2) because the plaintiff may have discovered the harm earlier but for her marriage to Carl O’Connell. Accordingly, pre-judgment interest on the non-pecuniary awards will run from December 27, 1996.
245This case differs from MacLeod with respect to fluctuations in interest rates. In this case, as found by me above, the plaintiff’s cause of action arose on December 27, 1996. Although not specifically stated in the Court of Appeal’s reasons, based on paragraph 4 of the court’s reasons, it appears that they accepted 2010 as the date that Mr. MacLeod’s cause of action arose. I have considered the pre-judgment interest rates set out in the Rules of Civil Procedure. In the years between 1997 and 2010, pre-judgment interest rates were higher than after 2010, sometimes considerably higher. Since the financial crisis of 2008, market interest rates have been extremely low, sometimes historically so. Those low interest rates were in place for the entire relevant period in Macleod but only for a much lesser portion of the entire relevant period in this case. In these circumstances, I am persuaded that in this case, the pre-judgment interest rate for the non-pecuniary awards should be higher than in MacLeod. Considering the fluctuations in pre-judgment and market interest rates, I am satisfied that in this case, the applicable pre-judgment interest rate should be 2.5 percent per annum.
246For those reasons, there shall be pre-judgment interest on the non-pecuniary awards at the rate of 2.5 percent per annum, running from December 27, 1996.
247The plaintiff also requested pre-judgment interest on the past loss of income claim. As found above, there was a past loss of income, but the amount of the claim was not proven. However, I was satisfied that a claim for loss of competitive advantage had been proven. Awards for loss of competitive advantage are not subject to pre-judgment interest. [33] Accordingly, there can be no pre-judgment interest on that award.
Costs
248If the parties cannot agree on costs, they are to contact the Oshawa trial coordinator to schedule a teleconference during which we will discuss the length and timetable of written submissions.
249As directed by me, counsel for both the plaintiff and the School Board provided me with a sealed enveloped containing their written submissions on costs in the event that judgment favoured their client. I have not opened those envelopes and will not do so unless the parties cannot agree on costs.
Conclusion
250I wish to commend all counsel for a very well-presented case and for their assistance on this very difficult and complicated case.
251For all of the above reasons, judgment shall go as follows:
a) the plaintiff is awarded general and aggravated damages in the amount of $300,000 payable jointly and severally by Mr. Williamson and the School Board; b) the plaintiff is awarded punitive damages in the amount of $100,000, payable only by Mr. Williamson; c) the plaintiff is awarded damages for loss of competitive advantage, in the amount of $200,000, payable jointly and severally by Mr. Williamson and the School Board; d) on consent, the plaintiff is awarded $4,122.06 for past care and incidental expenses, payable jointly and severally by Mr. Williamson and the School Board; e) the plaintiff is awarded $37,352.98 for future care and incidental expenses, payable jointly and severally by Mr. Williamson and the School Board; f) pre-judgment interest on the non-pecuniary awards runs from December 27, 1996, at the rate of 2.5 percent per annum; g) Mr. Williamson’s pleadings are struck, and his crossclaim is dismissed; and h) if the parties cannot agree on costs, a teleconference shall be arranged before me to discuss the length and timetable of written submissions.
Judgment to go accordingly.
The Honourable Justice D. Salmers Released: June 30, 2020
Footnotes
[1] Limitations Act, 2002, S.O. 2002, c.24, as amended, section 16(1) (h), (h.1), and (1.3). [2] M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, at para 74. [3] Bazley v. Curry, [1999] 2 S.C.R. 534. [4] Ibid, para. 15. [5] Ibid, para. 15. [6] Ibid, para. 29. [7] Ibid, para. 41. [8] Ibid, para. 41. [9] Exhibit 2, Tab 5G [10] Ms. Thompson married and changed her surname to Willshaw after the relevant events. Throughout these reasons, she will be referred to by her maiden name, Thompson. [11] Exhibit 2, Tab 5F. [12] Exhibit 14. [13] Myers v. Peel (County) Board of Education, [1981] 2 S.C.R. 21, at para. 14. [14] Exhibit 2, Tab 5G. [15] Education Act, RSO 1980, c. 129, s.150(1)5; RRO 1980, Reg. 262, s. 23, and their successors. [16] M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, at para 74. [17] Zando v. Ali, 2018 ONCA 680, para. 12. [18] Ibid, para. 13. [19] R. v. Friesen, 2020 SCC 9. [20] Zando v. Ali, 2018 ONCA 680, at paras 15, 20. [21] McCabe v. Roman Catholic Episcopal Corporation, 2019 ONCA 213. [22] MacLeod v. Marshall, 2019 ONCA 842. [23] Ibid, at para. 14. Leave for appeal dismissed by SCC, April 30, 2020. [24] Ibid, paras 17 and 18. [25] Ibid, paragraph. 22. [26] Kwei v. Boisclair. [27] Exhibit H. [28] Exhibit 6, Tab 3C, pg. 38. [29] Courts of Justice Act, R.S.O. 1990, c. 43. [30] L.R. v. S.P., 2019 ONSC 1737, at paras. 98 and 99. [31] M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, at paragraph. 30. [32] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 53.10. [33] Cerilli v. Ottawa (City), 2008 ONCA 28.