Dunford v. Hamilton-Wentworth District School Board, 2024 ONSC 2991

COURT FILE NO.: CV-13-480124

DATE: 20240527

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOHN DUNFORD

Plaintiff

– and –

HAMILTON-WENTWORTH DISTRICT SCHOOL BOARD and HAMILTON HEALTH SCIENCES CORPORATION

Defendants

Michael Wilchesky and Nahid Atrchin, for the Plaintiff

Deborah Berlach and Landan Peleikis, for the Defendant Hamilton Health Sciences Corporation

HEARD: September 11, 12, 13, 14, 15, 19, 20, 21 and 27, 2024

REASONS FOR JUDGMENT

VERMETTE J.

[1] The Plaintiff brings this action seeking damages with respect to two alleged incidents of sexual abuse that took place in early 1983, when he was 19 years old. At the time, the Plaintiff was a student in an alternative school. He alleges that he was sexually abused by the director of the school, who was also his tutor. The alleged perpetrator passed away in 1995 and was never sued. The Plaintiff’s action is based on vicarious liability and negligence.

[2] The Plaintiff seeks the following relief:

a. general and aggravated damages within the range of $173,000.00 - $518,000.00;

b. future treatment costs of $20,200.00;

c. damages for past income losses between $1,051,626.00 and $2,332,205.00; and

d. damages for future income losses between $343,496.00 and $825,371.00.

[3] While I find that the director of the school did commit sexual battery on the Plaintiff, I conclude that the doctrine of vicarious liability does not apply in the particular circumstances of this case and that negligence has not been established.

A. FACTUAL BACKGROUND

1. The parties, the Cool School and the witnesses

[4] The Plaintiff, John Dunford, is 61 years old. He is a freelance editor.

[5] Mr. Dunford attended the Cool School in Hamilton in 1982-1983. The Cool School was an alternate education program directed towards students who had a capacity for higher education but were unable to adjust to the regular school system.

[6] Dr. James E. Anderson was the founder, clinical coordinator and director of the Cool School. Mr. Ted Ridley was a coordinator at the Cool School. Dr. Anderson passed away in 1995.

[7] The teachers at the Cool School were referred to as tutors. They served as group leaders, student advisors, and recorders of research data.

[8] For some period of time, the Cool School was funded by two ministries through the Chedoke Hospital(s). The Defendant Hamilton Health Sciences Corporation assumed the liabilities of Chedoke Hospital(s). The Defendant and its predecessors are referred to as the “Hospital”.

[9] Government funding for the Cool School was provided to the Hospital through its regional adolescent services department. Operating funds for the Cool School, including payments made to tutors, came from the funding specifically received for the Cool School and not from the Hospital’s general operating budget.

[10] The Cool School operated on the grounds of the Hospital from late 1973 until some point in 1983 (but not the complete year).

[11] In 1982 and 1983, while Mr. Dunford was a student at the Cool School, Dr. Anderson held privileges at the Hospital.

[12] The action was discontinued as against the Defendant Hamilton-Wentworth District School Board in August 2021.

[13] Mr. Dunford testified at trial. In addition, he called the following witnesses:

a. David Turkstra, a former Cool School student;

b. Mark Boardman, a former Cool School student and a friend of Mr. Dunford;

c. Ted Ridley, former tutor and coordinator at the Cool School;

d. Dr. Peter Szatmari, psychiatrist, former tutor at the Cool School and former head of the outpatient team program in the Hospital’s adolescent services department;

e. Stephanie Greenwald, forensic accountant who was qualified as an expert witness; and

f. Dr. Carol-Anne Hendry, clinical psychologist who was qualified as an expert witness.

[14] The Hospital only called one witness, Professor Douglas Edward Hyatt, Professor Emeritus at the University of Toronto’s Rotman School of Management and Centre for Industrial Relations, who was qualified as an expert witness.

2. Mr. Dunford’s childhood

[15] Mr. Dunford was the eldest of five brothers. They were born approximately one year apart. Mr. Dunford spent most of his childhood in Hamilton and started elementary school there. One of his brothers died of cancer when he was 8 years old. After the death of his brother, the family moved to Nova Scotia. Mr. Dunford went to school there. Approximately two years later, Mr. Dunford’s mother and siblings moved back to Hamilton, after his father had an affair. Mr. Dunford also went back to Hamilton approximately two months later. His father stayed in Nova Scotia.

[16] Mr. Dunford was ten years old when his parents split. Before that, his father was “in and out”. Mr. Dunford said that he grew up in poverty, especially after his father left the family. Mr. Dunford described his family life as “chaotic”. He also said that his mother had mental health issues. She did not work, even after Mr. Dunford’s father left the family.

[17] Mr. Dunford was not close to his father growing up. He testified that his father beat him up twice when he was seven or eight years old. His father was drunk when this occurred.

[18] While his parents were still living together in Hamilton, they rented floors in their house to boarders. When Mr. Dunford was approximately 8 years old, two male boarders sexually touched him. They rubbed him from outside his pants. This occurred on two or three occasions.

[19] At some point after the incidents with the boarders, there were a few sexual incidents in a park near Mr. Dunford’s home. Mr. Dunford was fellated by teenage boys. Mr. Dunford also referred to sniffing glue in the park.

[20] Mr. Dunford did not mention or report the sexual incidents with the boarders or in the park to his parents, Dr. Anderson or anyone else after they happened. He talked about them for the first time at St. Joseph’s Hospital in the 1990s.

[21] Mr. Dunford started smoking cigarettes when he was eight years old. He said that it helped him to be calm. He did not smoke continuously, only when he had the opportunity.

[22] When he was nine years old, Mr. Dunford was involved in a car accident. He hit his head on the windshield and had to go to the hospital.

[23] Mr. Dunford did not do well at school after he came back from Nova Scotia. After grade 7, he was told that he was going to go to a vocational school, but he did not want to go there. He decided to move to Nova Scotia and lived there with his uncle and aunt for a year. His uncle introduced him to books and learning. Mr. Dunford completed grade 9 in Nova Scotia with honours. He was sixteen years old at the time.

[24] After Mr. Dunford’s cousin got killed in a car accident, Mr. Dunford returned to Hamilton where he started grade 10. He lived with his mother and siblings.

[25] Mr. Dunford did not complete grade 10. He eventually dropped out and moved back to Nova Scotia where he lived with his father. He went to high school there for about one month, and then got a full-time job. He paid rent to his father.

[26] Mr. Dunford later returned to Hamilton where he lived with his mother. He went back to his prior high school for grade 10. He did not like the school and his grades were mediocre. He thought that he was smarter and better read than the students at his school, and felt intellectually superior.

[27] At some point, problems developed between Mr. Dunford and his mother and her new boyfriend. Mr. Dunford stopped living with his mother and moved to Webber House, a group home operating in Hamilton. He was there for approximately nine months and left in the summer of 1981.

3. Admission to the Cool School in 1981

[28] While living at Webber House, one of the case workers there referred Mr. Dunford to the Cool School. She completed a referral form prepared by the Chedoke-McMaster Hospitals, Child & Family Centre, Intake Department. Mr. Dunford stated that two other students living at Webber House attended the Cool School, which was located in a building on the Hospital’s grounds. Mr. Dunford did a tour of the Cool School with one of the persons living at Webber House before applying. He met Dr. Anderson at that time and spoke to him in his office for approximately 30 minutes. He learnt about the Cool School’s approach to learning.

[29] After the first tour, Mr. Dunford went back to the Cool School for several visits, either on his own or with the students who lived at Webber House. Each time, he had conversations with Dr. Anderson. They talked about philosophy, literature, books and learning. Dr. Anderson also talked to him about the Cool School and its approach. That made Mr. Dunford want to be a student at the Cool School and, as stated above, one of Webber House’s case worker completed a referral form for him. The case worker allegedly told him that he could not simply transfer from his high school to the Cool School because the latter was not part of the school board and was run by the Hospital.

[30] After the referral form was sent, Mr. Dunford was asked to attend a meeting with Ted Ridley. Approximately one month before this meeting, Mr. Dunford was asked to leave Webber House because he had not complied with the curfew a few times.

[31] Mr. Dunford found Mr. Ridley cold. He understood that Mr. Ridley would be his tutor if he went to the Cool School and he did not want him to be his tutor. A couple of weeks later, he met with Dr. Anderson at the Cool School. Mr. Dunford thinks that he must have told Dr. Anderson that he did not like Mr. Ridley.

[32] Mr. Dunford was admitted to the Cool School for the 1981-1982 school year, but he stated that he did not realize that he had been admitted.

[33] The Hospital produced in the litigation a Discharge Summary dated July 6, 1982 regarding Mr. Dunford which reads as follows:

REFERRAL:

John was referred to Cool School by Webber House staff because of their concern about his inability to adjust to a school situation in which his peers would be much younger than him. He was seen at Cool School in May 1981 by Dr. Anderson and put on the list for September.

COURSE IN PROGRAM:

John attended only one meeting with his tutor in early September of 1981. He expressed a good deal of excitement about the Unit he was to work on and left with a number of books and tapes in order to begin his research. He called a day or two later to say he had been thrown out of his mother’s house and later indicated he could not attend because of the trials of living on welfare. He does not appear to have made any serious attempt to return the school’s materials or reconsider his decision, although for a time he kept in intermittent contact by letter with Dr. Anderson. He is regarded as a non-materializing candidate.

[34] The Discharge Summary is on the letterhead of Chedoke-McMaster Hospitals. It indicates at the top that Mr. Dunford’s therapist was Mr. Ridley and that the supervising M.D. was Dr. Anderson. The document is signed by both Mr. Ridley as the Coordinator of the Cool School Program, and Dr. Anderson as the Clinical Coordinator of the Cool School Program.

[35] Mr. Ridley testified that the Hospital would not have known that Mr. Dunford later re-engaged with the program if no other record was subsequently provided to the Hospital.

[36] Mr. Dunford eventually went back to Nova Scotia. He lived with his father and got a job as an overnight janitor in a McDonald’s restaurant in Halifax.

[37] While he was in Nova Scotia, Mr. Dunford participated in a literature contest and submitted a novel. While he did not win, he received a letter from one of the judges telling him that he liked his novel. Mr. Dunford was excited about the letter and he called Dr. Anderson in the spring of 1982 to share his experience. Dr. Anderson was also excited for him and invited him to come to the Cool School. He told Mr. Dunford that if he came back to Hamilton, he could attend the Cool School. Mr. Dunford was very happy about this as he wanted to go to university. Dr. Anderson told Mr. Dunford that he was going to start his own class and that Mr. Dunford could be in his class. Mr. Dunford was very happy about this as well because he felt that he had an intellectual connection with Dr. Anderson.

[38] After spending approximately eight months in Nova Scotia, Mr. Dunford came back to Hamilton in July or August 1982. He rented an apartment. He had enough money saved to pay for the first and last month of rent, but he was unable to find a part-time job in Hamilton. He was on student welfare during the school year.

4. Attendance at the Cool School in the fall of 1982

[39] Mr. Dunford started at the Cool School in September 1982, when he was 19 years old. He did not receive any admission letter and he does not recall whether he had to complete any application form or process to go to the Cool School. His understanding that he was starting at the Cool School was based on his conversation with Dr. Anderson. Before the start of the school year, Mr. Dunford had meetings with Dr. Anderson in his office. They discussed how the groups worked, as well as personal matters. Dr. Anderson confirmed that he was going to be Mr. Dunford’s tutor.

[40] Mr. Dunford testified that he knew that the Cool School was not part of the school board because the school board did not offer alternative high school. He said that he knew that the Cool School was part of the Hospital. Mr. Dunford also knew that Dr. Anderson was a medical doctor. However, at trial, Mr. Dunford was unclear as to whether he knew at the relevant time where Dr. Anderson worked as a medical doctor.

[41] At the beginning of the school year, Mr. Dunford met the other five students in his group, including David Turkstra. Mr. Dunford’s group met at least twice a week with Dr. Anderson at the Cool School. Everyone made presentations and participated in the critiquing. There was no grading.

[42] Consistent with the Cool School approach, Mr. Dunford also had one-on-one meetings with Dr. Anderson, his tutor. Students were encouraged to talk about personal matters with their tutors. This was part of the philosophy of the school.

[43] Dr. Anderson had a practice of twisting boys’ nipples in front of others. Mr. Dunford called that practice “purple-nurple”. Dr. Anderson did it to Mr. Dunford a few times and stopped after Mr. Dunford told him to stop. Dr. Anderson also did it once to David Turkstra. After Mr. Turkstra told Dr. Anderson that he thought that this was inappropriate, Dr. Anderson stopped doing it to him. Dr. Anderson continued to do it to other boys at the Cool School, but not to girls. Mark Boardman, another former Cool School student, said that he saw Dr. Anderson do this to others and he thought that it was inappropriate behaviour, but Dr. Anderson never did it to him. Mr. Turkstra testified that he did not see anything else that he thought was inappropriate at the Cool School.

[44] When Mr. Dunford started at the Cool School in September 1982, the school was still operating in a building located on the Hospital’s grounds. According to Mr. Dunford, the Cool School moved to a new building on Queen Street in Hamilton after about two weeks.

[45] Mr. Dunford had a girlfriend at the time. Dr. Anderson met her a couple of times. According to Mr. Dunford, Dr. Anderson did not approve of it and told him that he should focus on studying.

[46] Mr. Dunford contracted pneumonia in late October or in November 1982. He went to the hospital and was told that it would take him about one month to recover. He called Dr. Anderson to let him know that he was not able to attend school because of his condition. Dr. Anderson came to his apartment four or five times while Dr. Dunford was at home sick because he did not want Mr. Dunford to fall behind. He brought him schoolwork and a typewriter. The first time that Dr. Anderson came to Mr. Dunford’s apartment, he brought his stethoscope, poetry and sake. They read poetry to each other and drank sake. While Mr. Dunford had never drunk sake before, he had had alcohol before. He said that he would drink alcohol at house parties on weekends once every couple of weeks. He and his girlfriend would have a twelve-pack of beers at a party.

[47] Mr. Dunford did not attend school for three or four weeks. After Mr. Dunford had recovered from his pneumonia and returned to school, Dr. Anderson came to his apartment a few more times. He would drop off books. He would come into his apartment, but he did not bring alcohol at that time.

[48] Dr. Anderson invited Mr. Dunford to come to his house for Christmas dinner in December 1982. Dr. Anderson’s wife and children were there, as well as Dr. Anderson’s best friend. Mr. Dunford thinks that he may have gone to Dr. Anderson’s house once prior to the Christmas dinner, but he is not sure.

5. Sexual incidents in the winter of 1983 and completion of the Cool School program

[49] Mr. Dunford returned to the Cool School after the Christmas break. He started going to Dr. Anderson’s home office after Christmas. Dr. Anderson invited him to come there in January 1983 to discuss phases 3 and 4 of the Cool School program. Dr. Anderson’s wife would usually be present in the house when Mr. Dunford met with Dr. Anderson in his home office.

[50] According to Mr. Dunford, Dr. Anderson started talking more about himself during the meetings in his home office, and they opened up to each other about their lives. Mr. Dunford thought that they had a lot in common, including poverty, a difficult childhood and an absent father.

[51] At some point, Dr. Anderson told Mr. Dunford that his signature would get him admitted at McMaster University. A student had to pass all the phases for Dr. Anderson to sign a letter of equivalency.

[52] Mr. Dunford went to Dr. Anderson’s home office three or four times in January 1983. During each meeting, they drank Mexican beer. Mr. Dunford would usually drink three or four beers during a meeting.

[53] The meetings in Dr. Anderson’s home office continued in February 1983. At that time, in addition to Mexican beers, they would also drink scotch. Mr. Dunford started drinking more heavily in February. He estimated that during one meeting, he could have seven shots of scotch and six or seven beers.

[54] One day in February 1983, Dr. Anderson invited Mr. Dunford to come to his home office to discuss an issue. It was snowing that day. At the end of the meeting, Dr. Anderson offered to drive Mr. Dunford home. Mr. Dunford stated that they were both drunk.

[55] Dr. Anderson drove Mr. Dunford home and came into his apartment. Once in the apartment, Dr. Anderson kissed Mr. Dunford on the mouth and told him that he loved him. Mr. Dunford said that he then froze and “sobered up” quickly. He did not know what to do. He was afraid and he did not want to offend Dr. Anderson.

[56] They then went to bed. They both got undressed separately. Mr. Dunford testified that he did not say anything to Dr. Anderson after they kissed. He did not say no. He just wanted to get it over with.

[57] In bed, Mr. Dunford fellated Dr. Anderson for a few minutes. Dr. Anderson then fellated Mr. Dunford until he orgasmed. Dr. Anderson hugged him and said again that he loved him. Mr. Dunford told Dr. Anderson that this was wrong as Dr. Anderson was his teacher. Dr. Anderson said that in the future, they could just be naked and hug, with no sex. Mr. Dunford thought that this was an absurd suggestion.[^1] Dr. Anderson left shortly thereafter.

[58] Mr. Dunford did not tell anyone about what happened with Dr. Anderson as he was afraid and ashamed. He did not tell his girlfriend or anyone at the Cool School or at the Hospital. He did not have a conversation with Dr. Anderson in the following days about what had happened. Mr. Dunford noted the power imbalance between Dr. Anderson and him. He said that he was scared that he would not be able to complete his education and go to university.

[59] There was a similar occurrence a couple of weeks later. Mr. Dunford went to Dr. Anderson’s home office. Mr. Dunford wanted to talk to Dr. Anderson about what had happened. They drank. They talked a bit about what happened. Mr. Dunford said that it should not have happened as Dr. Anderson was his teacher and this was inappropriate. Dr. Anderson apparently agreed. However, Mr. Dunford later accepted Dr. Anderson’s offer to drive him home. Dr. Anderson drove Mr. Dunford home and went into his apartment. Dr. Anderson kissed Mr. Dunford and told him that he loved him. They got undressed separately. Dr. Anderson fellated Mr. Dunford, but Mr. Dunford did not fellate Dr. Anderson. Mr. Dunford did not say no. He testified that he was drunk, overwhelmed and afraid. Mr. Dunford acknowledged that Dr. Anderson was not violent and that he could have said no at any time, but he was afraid to do so.

[60] Dr. Anderson told Mr. Dunford that he had been gay all his life. Mr. Dunford told Dr. Anderson that he was not gay. He also told him that it was wrong and it could never happen again.

[61] Mr. Dunford said that following the second occurrence, he did not put himself in a position where this could happen again. He also said that he has hated Dr. Anderson since then.

[62] Mr. Dunford did not report the second occurrence to anyone. He said that he was ashamed.

[63] After the second occurrence, Mr. Dunford went back to Dr. Anderson’s home office twice, but during the day. By that time, he was living with his girlfriend, to the knowledge of Dr. Anderson. Once after the second incident, Dr. Anderson helped Mr. Dunford with his rent, presumably at Mr. Dunford’s request. Mr. Dunford never drank alcohol with Dr. Anderson again. Mr. Dunford said that he became cold.

[64] Mr. Dunford did all the required work and completed the Cool School program. On August 31, 1983, Dr. Anderson signed a Letter of Equivalency for Mr. Dunford, which was on Hospital letterhead. The letter states that Mr. Dunford entered the Cool School program in September 1982 and completed it in August 1983. It summarizes the work done by Mr. Dunford during the year and concludes with the following recommendation:

This intellectually gifted young man has demonstrated his ability to enter and succeed in a University program. He has the equivalent of Grade XIII.

[65] Dr. Anderson gave a copy of the Letter of Equivalency to Mr. Dunford and a copy was submitted to McMaster University. Dr. Anderson gave the letter to Mr. Dunford in his office at the Cool School and he told him something along these lines: “Congratulations, you will be going to McMaster University.” Mr. Dunford did not receive any other document showing that he had completed the program at the Cool School.

[66] Mr. Dunford testified at trial that he felt that he had earned the Letter of Equivalency, and that he did not think that he obtained the letter because of his “sexual encounters” with Dr. Anderson. Mr. Dunford appears to have made different statements on this issue to his psychologist expert, among others.

[67] According to Mr. Dunford, the students in his group all passed all the phases of the Cool School program.

6. Sexual incidents in the winter of 1983 and completion of the Cool School program

[68] Mr. Dunford was accepted at McMaster University in the humanities program. He started in September 1983 as a full-time student. He obtained a grant from the Ontario Student Assistance Program.

[69] Mr. Dunford stated that he attended classes for the first couple of months, but he could not really focus. He was depressed and experienced self-hatred. He said that he could not believe what had happened and he had no confidence that he could succeed. He was feeling guilty and considered what happened with Dr. Anderson as a “dark secret” that he could not share with his girlfriend, with whom he was living. Mr. Dunford felt like he had no resources, but he did not seek help from anyone. He had no contact with Dr. Anderson while he was at McMaster University.

[70] Mr. Dunford testified that he thought that university was going to be similar to the Cool School, but it was not. He expressed the view that the Cool School did not prepare students for the demands imposed by university. He also expressed the view that university was not designed for poor people, but that with some help, one could succeed in university despite poverty. Mr. Dunford said that Dr. Anderson had told him that he was going to guide him through university. He was expecting that Dr. Anderson would help him with course selection, papers, where to get help and where to go on campus. Mr. Dunford could not remember whether Dr. Anderson had assisted him with his course selection and stated that he might have done so.

[71] Mr. Dunford did not complete any courses at McMaster University. He said that he was bitter and could not even read a book. He stopped going to classes in January 1984. He never went back to school after that.

7. Mr. Turkstra’s evidence

[72] David Turkstra was 57 years old at the time of the trial, and the Chief Strategy Officer of Village Media Inc.

[73] At trial, Mr. Turkstra confirmed that he attended Cool School at the same time as Mr. Dunford. He started at the Cool School in September 1982. Mr. Turkstra had previously met once with Dr. Anderson in August 1982 after his father had reached out to Dr. Anderson. Mr. Turkstra was 16 years old at the time. He wanted to finish high school so as to be able to register in a music program at McGill University. He had completed Grade 11 and did Grades 12 and 13 at the Cool School. Dr. Anderson was his tutor at the Cool School. Mr. Turkstra completed the program at the end of May or early June 1983. Mr. Turkstra did not know what the curriculum was for the other students. He covered what Dr. Anderson told him he had to cover.

[74] When Mr. Turkstra started at the Cool School, the school was located in a house on the Hospital’s campus. At the beginning of the year, there were five people in Mr. Turkstra’s group (including him). According to Mr. Turkstra, Mr. Dunford joined the group later, bringing the number of people in the group to six. The group would meet once a week, sometimes more. Each week, the students would have to come up with their own individual plan for what they were going to accomplish that week. Mr. Turkstra remembers that Mr. Dunford was generally part of the group meetings, but he was sick at some point.

[75] Mr. Turkstra described Dr. Anderson as curious, encouraging of intellectual exploration, and fun-loving. As part of the program, Mr. Turkstra had one-on-one meetings with Dr. Anderson. The meetings were at Dr. Anderson’s house. Mr. Turkstra assumed that the other students were doing the same. The one-on-one meetings occurred weekly, usually in the evening at 7 or 8 p.m. The meetings were one hour or one hour and a half long. Mr. Turkstra said that he had a lot of personal conversations with Dr. Anderson, as well as general conversations about what was going on in the world at that time. Dr. Anderson told him about his past during these conversations. In addition to conversations in person, there were also conversations on the phone.

[76] Mr. Turkstra described Mr. Dunford as smoking, not very healthy, shy and very nice. He said that he had never met anyone who had read as much as Mr. Dunford, but that Mr. Dunford was not interested in much outside of reading.

[77] Mr. Turkstra does not remember the exact date of the school move, but he said that the Cool School was in a new building at King and Queen in Hamilton by January 1983.

[78] Mr. Turkstra stated that he did not notice any change in Mr. Dunford’s behaviour in 1983.

[79] As planned, Mr. Turkstra went to McGill University after he completed the Cool School program, but he only stayed there for one year. After one year at McGill, he went to the University of Waterloo and Dr. Anderson helped him to get into the program for which he wanted to register. Mr. Turkstra ultimately obtained a university degree from the University of Waterloo.

8. Mr. Boardman’s evidence

[80] Mark Boardman was also a student at the Cool School. Mr. Boardman has known Mr. Dunford for more than 40 years, and they have been friends on an off during that time. Mr. Boardman first got to know Mr. Dunford through his girlfriend at the time. Mr. Dunford’s girlfriend was in Mr. Boardman’s group at the Cool School in 1983. Mr. Boardman stated that he had previously seen Mr. Dunford in the hallway at the Cool School.

[81] According to Mr. Dunford, while Mr. Boardman was at the Cool School when Mr. Dunford was there, they did not meet until the following year. They met through Mr. Dunford’s girlfriend at the time, who was a student at the Cool School. Mr. Dunford and Mr. Boardman became friends and drinking buddies.

[82] Mr. Boardman went to the Cool School for two weeks in May 1982, and he returned in September 1982. Before going to the Cool School, he had gone to a number of high schools and had almost completed Grade 10 (he was two credits short). He was at the Cool School until August 1985.

[83] As a teenager, Mr. Boardman had issues with his stepmother and dropped out of high school as he could no longer live with her and his father. He heard about the Cool School from a friend of a friend. It appears that his grandmother applied to the Cool School on his behalf in January 1982, when Mr. Boardman was 17 years old. A letter acknowledging receipt of the application and enclosing a letter to Mr. Boardman’s parents was sent to Mr. Boardman’s grandmother on January 21, 1982. The letter was on the letterhead of Chedoke-McMaster Hospitals and was signed by Leslie Knight, Adolescent Intake Worker, Adolescent Services.

[84] The letter to Mr. Boardman’s parents, which is dated January 22, 1982, is also on the letterhead of Chedoke-McMaster Hospitals and signed by Leslie Knight. The letter reads as follows:

We are in receipt of a referral from Mark’s grandmother, Mrs. Cumming, concerning application to Cool School on his behalf. This was received January 13, 1982.

Unfortunately at this time we have no openings in our Cool School program and the waiting list is long. We will, however, process Mark’s application for consideration in the future (Summer or Fall 82).

Enclosed please find a Release of Information Form to be signed by one parent in order for us to obtain academic records. Please complete the form including School Board, Name of School and grade. Please sign and return in the accompanying pre-stamped envelope.

Upon receipt of these records we may wish to contact you for an initial appointment.

[85] According to Mr. Ridley, the letters sent by Ms. Knight would have been written at the direction of Dr. Anderson.

[86] Mr. Boardman stated that he went to an intake or assessment meeting in the spring of 1982. The meeting took place in the building where the Cool School operated. Mr. Boardman later received confirmation that he was admitted to the Cool School.

[87] Mr. Boardman first met Dr. Anderson in May 1982, during his first two weeks at the Cool School. The “classes” were in a building on the Hospital’s grounds. Dr. Anderson was Mr. Boardman’s point of contact for the first couple of weeks. Mr. Boardman’s first tutor was someone named Wayne, not Dr. Anderson. Mr. Boardman stated that the school moved to a new building during the summer break. He said that the classes in September 1982 were in the new building at King and Queen in Hamilton.

[88] Mr. Boardman had a number of tutors during his time at the Cool School. He said that he changed tutors each time that he moved to the next phase of the curriculum or when groups were merging. Mr. Boardman’s last tutor was Ted Ridley. Dr. Anderson never was his tutor. Mr. Boardman testified that he met his tutors outside of the Cool School, including sometimes at their homes. There were weekly one-on-one meetings with tutors.

[89] Mr. Boardman stated that there were no set hours for the Cool School. Students would come in for group meetings. Mr. Boardman did not recall how many group meetings there would be per week. He said that the meetings did not last for the full day, and there could have been meetings three days per week or five days per week. The students studied individually based on a self-directed learning approach. The Cool School program had four phases. The last phase was a community placement. Ted Ridley was Mr. Boardman’s tutor in the summer of 1985. Mr. Ridley helped Mr. Boardman secure a community placement.

[90] When Mr. Boardman “graduated” in 1985, he received a letter of recommendation to go to McMaster University. He believes that the letter was signed by Mr. Ridley.

[91] Mr. Boardman was admitted at McMaster University, but he withdrew from the social sciences program that he had registered for in the 1985-1986 school year. He took some time off from school to work and he returned to McMaster University during the 1987-1988 school year. Ultimately, Mr. Boardman obtained a bachelor of arts in history from McMaster University in 1990.

[92] In 1990 or 1991, Mr. Dunford told Mr. Boardman about what had happened between him and Dr. Anderson. According to Mr. Boardman, Mr. Dunford told him something to the effect that he had had homosexual relationships with Dr. Anderson in Dr. Anderson’s house. Mr. Dunford did not say for how long and he did not say if he had reported it. Mr. Boardman believes that oral sex was involved, but he does not remember anything else. Mr. Dunford had previously talked to Mr. Boardman about his childhood abuse. Mr. Boardman was present once when Mr. Dunford confronted one of the boarders who had abused him after seeing him in downtown Hamilton. The person ran away.

[93] Between 1990-1991 and 2013, Mr. Dunford and Mr. Boardman discussed Dr. Anderson quite a few times. Among other things, they discussed the sexual abuse and whether Dr. Anderson’s life would have been different had homosexuality been more tolerated.

[94] Mr. Boardman and Mr. Dunford shared an apartment for approximately one year in 1992-1993.

[95] Mr. Boardman retired in 2011. Prior to retiring, he was a computer graphic artist.

[96] At the time of the trial, Mr. Dunford lived in Mr. Boardman’s basement. Mr. Dunford moved into Mr. Boardman’s house in August 2021. Mr. Dunford pays rent to Mr. Boardman in the amount of $500.00 per month, but he did not pay rent until March 2023. Over the years, Mr. Boardman gave money to Mr. Dunford when he needed it. Mr. Boardman also allowed Mr. Dunford to live rent-free in his basement a few weeks here and there, when Mr. Dunford needed help.

[97] Mr. Boardman described himself as one of Mr. Dunford’s “drinking buddies”. He stated that Mr. Dunford used to drink heavily. Mr. Boardman also stated that he did not drink as heavily as Mr. Dunford. Mr. Boardman said that, in the last ten years or so, his friendship with Mr. Dunford was put on hold once in a while because of alcohol.

9. Years following Mr. Dunford’s attendance at McMaster University

[98] Mr. Dunford said that after dropping out of university, his dream of becoming a professor of philosophy was lost. He did not know what to do.

[99] He had a few jobs until he applied to Brabant Newspapers in 1986. He was hired in a full-time position. He earned $180.00 per week. He learned about journalism by reading books.

[100] Mr. Dunford started drinking heavily after leaving McMaster University. He attributes this to the incidents with Dr. Anderson, his anxiety, depression, self-hatred and anger. He did not drink at work, only after work. However, he would sometimes come to work hung over or would miss work because of his alcoholism. Approximately one year after starting at Brabant Newspapers, he drank a six-pack of beers every night.

[101] Mr. Dunford also started smoking pot at about the same time that he started working at Brabant Newspapers. He would have a joint every couple of days.

[102] Mr. Dunford was not satisfied with his job and with his salary at Brabant Newspapers. He did not feel challenged intellectually and he felt that he was smarter than some of the people to whom he was reporting.

[103] Mr. Dunford also struggled in his romantic relationships and said that his alcoholism had a big impact on them. He had problems with sexual intimacy and had to be drunk. He said that before the incidents with Dr. Anderson, he had an active sexual life with his girlfriend, but he changed after.

[104] Mr. Dunford’s first admission to a hospital for alcohol-related issues was in 1990. On September 5, 1990, he voluntarily sought treatment at a rehabilitation centre for alcohol and drug (cannabis) issues. He wrote on the intake questionnaire that he consumed eight to ten bottles of beer daily, as well as two to four joints. Mr. Dunford left the program before he completed it. Mr. Dunford continued drinking. The next time that he sought help was after Dr. Anderson’s death, which was in 1995.

[105] In 1992, Mr. Boardman told Mr. Dunford that Dr. Anderson had left his house and moved into an apartment. Mr. Dunford called Dr. Anderson at that time. They only spoke for a few minutes. Mr. Dunford said that Dr. Anderson was cold and he was not able to confront him. At about the same time, Dr. Dunford told Mr. Boardman about the two incidents with Dr. Anderson, but he did not go into detail. Mr. Dunford did not tell anyone else until he went to St. Joseph’s Hospital in 1997.

[106] According to Mr. Dunford, when Dr. Anderson died in 1995, he collapsed. He went to his funeral with Mr. Boardman. Mr. Dunford asked Mr. Boardman to come with him. Mr. Dunford said that going to the funeral did not help. He had suicidal thoughts. He sought help at St. Joseph’s Hospital between 1995 and 2000. He said that two doctors walked out on him when he raised the incidents with Dr. Anderson, and that he was told to focus on his childhood. In his view, he received no help. Mr. Dunford later put his suicidal thoughts aside after his son was born.

[107] In September 1997, Mr. Boardman brought Mr. Dunford to the hospital’s emergency department out of concern for his increased alcohol consumption. Mr. Dunford had also complained of chest pain. According to Mr. Dunford, he had stopped eating and had increased his alcohol intake in the hope of inducing a heart attack. Mr. Dunford was ultimately admitted to St. Joseph’s Hospital’s psychiatric wing, where he stayed for two weeks. Mr. Boardman went to visit Mr. Dunford, but he was asked not to visit again as he smelled alcohol. Mr. Dunford told him that he had to be sober if he wanted to visit him.

[108] St. Joseph’s Hospital referred Mr. Dunford to Homewood Addiction Services. Mr. Dunford completed their programs on substance abuse and recovering from post-traumatic stress disorder. He also did other programs later. Mr. Dunford found that the Homewood programs helped a little bit, but not enough.

[109] In 1998 or 1999, Mr. Dunford left his employment with Brabant Newspapers. He moved to Guelph and took a couple of years off. His employer had given him a “buyout” and he received employment insurance for some time.

[110] In May 1999, Mr. Dunford was admitted voluntarily at Homewood. The admission note reports that Mr. Dunford stated that he came from “a very dysfunctional family”, and that “he had been sexually, physically, and emotionally abused since childhood.” Mr. Dunford identified the main perpetrators as being his father, two uncles, a grandmother and two strangers.

[111] On October 11, 2000, Mr. Dunford was admitted to the Hospital with suicidal ideation. He was discharged on October 20, 2000. The psychiatrist Mr. Dunford saw there is allegedly one of the psychiatrists who walked out of the room when Mr. Dunford mentioned the incidents with Dr. Anderson. Mr. Dunford did not complain against the psychiatrist. He said that he felt powerless.

[112] The Discharge Summary dated October 20, 2000 states the following with respect to Mr. Dunford’s relevant personal background:

John comes from a very abusive family environment. His father was physically and verbally abusive, was frequently in jail. Mum, he describes as being quite “inadequate” and not dealing with things on his behalf. He remembers his family taking in boarders and for approximately a 10 year period, he was sexually abused by a variety of men living in his building and in his extended family.

In his early teenage years, he became involved in a number of not so petty crimes including car theft, but decided by himself at the age of 14, to turn things around. He taught himself to read and write, got into school and eventually [Cool School] and did well enough to graduate and go to university.

On admission, he recognizes that almost all of his friends are either in jail or dead who he had grown up with.

He worked for 13 years as a journalist, getting a number of awards and wishes to continue his career as a journalist, and eventually becoming an editor. He also has a goal of going back to university to study philosophy and maybe even teaching at a university.

His prior psychiatric history other than adolescent contact at [Cool] School, have been during the last three years with no particular evidence of a major depressive episode prior to three years ago, although he does describe a lot of dysthymic symptoms and has tended to avail and ignore the consequences of the abuse that he suffered.

[113] During his testimony, Mr. Dunford stated that a number of statements in the Discharge Summary were inaccurate. For instance, he stated that it was not true that his father was frequently in jail. He said that his father was a gambler and he may have gone to jail once.

[114] In 2001, Mr. Dunford went back to St. Joseph’s Hospital as he was feeling suicidal again. He was transferred to McMaster Hospital. He saw a doctor who allegedly walked out of the room when he told him about the incidents with Dr. Anderson. Mr. Dunford was referred to a psychiatrist.

[115] In 2001, after his partner got pregnant, Mr. Dunford moved to British Columbia to make some money in a public relations job. He sent her money, but they grew apart during that time. He eventually came back to Ontario as he wanted to see his son.

[116] Mr. Dunford subsequently worked for a publishing company in Brighton, Ontario. In 2007, he came back to Hamilton. He met a new partner in 2007 and started editing books as a freelance editor. Some years, he was on welfare. In 2020, he edited three books. He has earned almost no income since 2020.

[117] Mr. Dunford started getting sick a lot. In March 2021, he was diagnosed with chronic obstructive pulmonary disease (“COPD”). In September 2021, he went to the Bridge to Recovery Program at St. Joseph’s Hospital. According to the clinical notes, Mr. Dunford mentioned sexual abuse in childhood by boarders and sexual abuse in adolescence; witnessing his father being physically violent toward his mother; his father being intimidating and emotionally abusive; and feeling neglected and invalidated by his parents.

[118] In 2022, Mr. Dunford only had one contract for one book and his income was approximately $3,000.00. At the time of the trial, he was in the process of applying for disability benefits for both COPD and post-traumatic stress disorder.

[119] Information received from Service Canada regarding Mr. Dunford’s employment history shows no employment income in 1999-2000, 2003, 2005-2006, 2008-2012, 2015, 2018-2019. Since 2004, he has not earned more than $10,000.00 per year. He worked for Brabant Newspapers from 1986 to 1998. His annual income during these years varied from $12,211.00 (in 1987) to $33,140.00 (in 1996).

[120] Mr. Dunford has been fully sober for more than six years.

[121] Mr. Dunford is not receiving any treatment right now. He said that he was turned off by psychiatry and getting help. He thinks that he needs help, but he does not trust anyone in Hamilton. He does not want to take psychiatric drugs, but would like to see a private psychologist.

[122] Mr. Dunford believes that Dr. Anderson ruined his life and affected all aspects of his life. Mr. Dunford thinks that he could have had better relationships with his partners and employers had Dr. Anderson not done what he did. Mr. Dunford said that as a result of what Dr. Anderson did, he was depressed, he did not trust anyone and has not had a decent career. Mr. Dunford talked about having flashbacks regarding his childhood and what happened with Dr. Anderson. He also has nightmares. According to Mr. Dunford, Dr. Anderson exploited the lack of male figures in his life. Before the incidents, Mr. Dunford thought that he could succeed at university and do really well.

[123] Mr. Dunford attributes some of his problems and issues to his childhood. He stated that poverty affected him and his moves. However, he said that the incidents of sexual abuse that he experienced before meeting Dr. Anderson were different because the perpetrators did not have power over him, contrary to Dr. Anderson. Mr. Dunford attributes most of his suffering and loss of income to Dr. Anderson’s improper conduct. He believes that but for Dr. Anderson’s conduct, he would have been successful at completing a university degree. He acknowledged that he may not have become a university professor.

[124] Mr. Dunford never contacted the Hospital before the service of the Statement of Claim in this action in 2013.

10. Evidence of Ted Ridley

[125] Mr. Ridley was involved at the Cool School on a full-time basis from 1971 until the program ended in 1988 or 1989. For the first couple of years, he was a tutor. Starting in approximately 1973, he spent half of his time as a tutor, and half of his time as an administrative coordinator. As a coordinator, he was responsible for the day-to-day running of the program, including staff issues. Mr. Ridley was the sole coordinator. Dr. Anderson was the director of the program. Mr. Ridley was accountable to him. They shared management responsibilities. Mr. Ridley does not believe that he signed a contract for his positions at the Cool School. Dr. Anderson offered him the position of coordinator.

[126] The Cool School program was developed based on the McMaster medicine school program, of which Dr. Anderson was one of the founders. Mr. Ridley was involved in the discussions regarding the development of the Cool School program. Dr. Anderson asked him to join the Cool School program and to develop a literacy component for the program.

[127] The mandate of the Cool School was to be an alternative high school program based on self-directed learning. The mandate was established by Dr. Anderson and Mr. Ridley. They both collaborated to create a manual that was designed to explain how the Cool School program worked (“Manual”). The Manual was entitled: “Learning How to Learn: A Student’s Guide to Cool School”. Some tutors contributed to the Manual as well. The Manual was the only document that was provided to the students. Mr. Ridley was not aware of any input by the Hospital with respect to the mandate of the Cool School, but the Hospital was aware of the mandate.

[128] The Manual included the following paragraph:

DO NOT get paranoid about the fact that we are sponsored by a hospital. DO remember that when nobody else wanted to help young people in our community find an alternative method of education it was Chedoke-McMaster Hospitals that provided a home for us and has continued to find a place and money to keep us going.

[129] In December 1974, the Cool School was designated as one of the programs to be operated by the newly organized regional adolescent services department at Chedoke Hospitals. Prior to that, the Cool School was a “pilot project”. Mr. Ridley thinks that the designation was an administrative determination by the Hospital.

[130] In 1977, Dr. Anderson, as principal investigator, and Mr. Ridley wrote a report entitled: “Cool School: An Alternative Secondary School Experience” (“1977 Report”). The first page of the 1977 Report indicates that this was a “research project […] funded under contract by the Ministry of Education, Ontario”. The 1977 Report was written for and published by the Ministry of Education, not the Hospital. Mr. Ridley stated that the report was written to fulfil a funding requirement.

[131] The Ministry of Education had provided funding for three years. Prior to that, the Cool School program was funded through money secured by Dr. Anderson, including through speaking engagements and donations. More stable funding was subsequently obtained from the Ministry of Community and Social Services (“Ministry”). The Ministry gave the funding to the Hospital who administered it. The Ministry identified the funding provided for each program, including the Cool School. The Cool School’s budget was in accordance with the funding received from the Ministry. From time to time, submissions would be made for an increase in funding, depending in part on the number of students, but Mr. Ridley was not involved in that process.

[132] In the late 1970s, the Cool School moved to a house located on Hospital property. Mr. Ridley thinks that the funding for the school included rent and other fees for the use of the building. In 1982 or 1983, the Cool School had outgrown the space that it had, and the Hospital secured a new space for the Cool School in Hamilton and negotiated the lease. The Hospital paid the rent and operated a few programs and services in the building as well. After the Cool School closed, the building was used for a psychiatric program.

[133] When the funding received for the Cool School started being paid through the Hospital’s financial department, Mr. Ridley became an employee of the Hospital and he was paid by the Hospital. Similarly, the employees working at the Cool School were employees of the Hospital and on the Hospital’s payroll. That did not include Dr. Anderson who was employed by McMaster University, not the Hospital. Dr. Anderson was not paid by the Hospital for his work at the Cool School.

[134] Once funding was received, i.e., from 1978 onwards, students of the Cool School registered as patients of the Hospital. According to Mr. Ridley, there would have been a chart for each student. Students who did not show up were said to be “non-materializing”. A note was sent to their chart and there was a discharge summary of some sort.

[135] The role of tutors was critical to the Cool School program. Tutors were to provide guidance and support to enable the students to succeed in the program. Tutors were not therapists, but they could give guidance on an instrumental basis, e.g., how to manage conflicts with parents. The 1977 Report stated that tutors “must not be embarrassed about showing love and affection, nor about their enthusiasm for an eager pursuit of learning.”

[136] In the early 1980s, the Cool School program had four phases, including a community phase. Mr. Ridley described the four phases as the Cool School’s curriculum. He stated that there was no discussion of the curriculum with the Hospital. The Hospital had no role in the development and implementation of the curriculum, and did not approve the changes that were made to the curriculum over the years.

[137] The decision to move to the next phase of the curriculum was usually reached by consensus. If a student completed the program, they would get a letter of equivalency or recommendation. If a student withdrew from the program without completing it, the student would not get a letter of equivalency. The ultimate decision to grant a letter of equivalency was made by consensus and would include Dr. Anderson and Mr. Ridley, who was often the tutor of students in the fourth phase of the program. Mr. Ridley would usually prepare the letters of equivalency and Dr. Anderson would sign them. Mr. Ridley does not know if Dr. Anderson wrote letters of equivalency by himself.

[138] Mr. Ridley said that the letters of equivalency were forwarded directly to the educational institutions, initially, McMaster University (given Dr. Anderson’s relationship with McMaster University), and later, other universities.

[139] As a tutor, Mr. Ridley reported to Dr. Anderson. As a coordinator, Mr. Ridley reported to the administration of the Hospital on issues such as budget and building-related matters (e.g., security, maintenance). The Hospital provided the security and maintenance staff. When asked who he understood his employer to be, Mr. Ridley said that he was accountable to Dr. Anderson, the coordinator of the program. He reported to Dr. Anderson and met with him at least once a week. Mr. Ridley did not remember the Hospital imposing any written rules or procedures that the Cool School had to follow.

[140] Mr. Ridley had meetings and written communications with the Hospital with respect to budget accountability issues. There was no set schedule for these meetings, but he would usually meet with an administrator every 1-3 months. Mr. Ridley also occasionally attended meetings with people from other programs. They would share updates. However, Mr. Ridley said that there was no discussion during these meetings with respect to the students, tutors, curriculum, etc. Mr. Ridley also had an annual meeting with the head of the Child and Youth Department for a “performance review”. A general update was provided at that meeting, but, again, there was no discussion about the students or curriculum.

[141] Mr. Ridley’s evidence was that he did not have to report to anyone at the Hospital about what was going on at the Cool School. He does not know whether Dr. Anderson had to do so. Mr. Ridley stated that the Ministry would send people to the Cool School once a year for a tour of the school. Mr. Ridley was present during these visits, which he described as “very cursory”.

[142] Mr. Ridley stated that any major issue had to go through Dr. Anderson. Among other things, Dr. Anderson vetted all the applicants and participated in the hiring of staff. Dr. Anderson interviewed prospective students and made the decision as to whether they would be admitted or not. He was the sole decision-maker in this regard and the gatekeeper of the program. Mr. Ridley testified that most students who came to the Cool School had been referred to Dr. Anderson personally – from their family, peers, psychiatrist, etc. Dr. Anderson also hired the tutors, but Mr. Ridley had some input as well.

[143] Mr. Ridley said that if a student had a problem, they would speak to Dr. Anderson. When asked who a student would speak to if they had a problem with Dr. Anderson, Mr. Ridley stated that he did not know and that he did not have the occasion to deal with the issue. He said that the students could have come to him or their tutor. Mr. Ridley testified that no complaints were received regarding the tutors and that he was not aware of any inappropriate conduct with the Cool School students. Mr. Ridley stated that the “purple-nurple” practice did not seem inappropriate at the time and no complaints were received about that.

[144] According to Mr. Ridley, Dr. Anderson had full-time responsibilities – both teaching and administrative responsibilities – at McMaster University. At times, he acted as a tutor at the Cool School. Mr. Ridley said that Dr. Anderson was spread very thin.

[145] Mr. Ridley stated that one-on-one meetings were part of the Cool School program. Every student in a tutorial group would meet individually with the tutor once a week for 20 or 30 minutes. The one-on-one meetings would usually happen at the school. However, Mr. Ridley was aware that Dr. Anderson used his home office quite frequently for individual sessions and sometimes group meetings as well. Mr. Ridley said that this was an acceptable place to meet and that it was not contrary to the Cool School program.

[146] Mr. Ridley was also aware that Dr. Anderson conducted doctor-patient therapy sessions in his home office, which were different from the Cool School tutorial sessions. Mr. Ridley said that he would not know how many students received therapy from Dr. Anderson.

[147] Mr. Ridley stated that the frequency of the meetings of the tutorial groups would change, depending on the level of the group.

[148] Dr. Anderson retired a year or two before the Cool School program ended because of health issues.

[149] Mr. Ridley testified that approximately one third of the Cool School students completed the program, and almost all of these students went to a post-secondary educational institution. He stated that, to his knowledge, Dr. Anderson and the tutors did not provide assistance with respect to university. He said that he did not think that tutors assisted with respect to the selection of university courses, and he was not aware of Dr. Anderson doing this either.

11. Evidence of Dr. Peter Szatmari

[150] Dr. Peter Szatmari is a child and youth psychiatrist at the Centre for Addiction and Mental Health (“CAMH”) and the Hospital for Sick Children. After completing his training in psychiatry in 1981, he was granted privileges at the Hospital and worked in the Child and Family Centre. He was there until 2013, when he moved to the University of Toronto, CAMH and the Hospital for Sick Children.

[151] Dr. Szatmari took a course with Dr. Anderson at McMaster University during his undergraduate degree. He got to know Dr. Anderson who invited him to volunteer at the Cool School. Dr. Szatmari was a part-time tutor at the Cool School in 1972-1973. He stopped tutoring in 1973 when he started medical school. As a tutor, he met a few times with a small group of approximately five students at the Cool School. He was not the only tutor for that group. Dr. Szatmari stated that there were additional sessions in the evening. He said that those took place in his apartment, and one took place at Dr. Anderson’s house. According to Dr. Szatmari, it was acceptable to do so based on the Cool School guidelines. Dr. Szatmari did not recollect meeting with students one-on-one, but he could not say whether tutors did that.

[152] Dr. Szatmari does not remember being paid for his work as a tutor, and he does not remember applying for this position. He said that Dr. Anderson offered it to him and he accepted.

[153] When Dr. Szatmari was at the Hospital, the mandate of the Hospital’s adolescent services department was to treat and support adolescents who had mental health challenges. It had three programs: (1) outpatient team (headed by Dr. Szatmari); (2) cottage or residential treatment centre; and (3) Cool School.

[154] From 1981 to 1995 or 1996, Dr. Szatmari was the head of the outpatient team program. The outpatient team provided outpatient services to youth with mental health or substance use issues. Therapy for family was also offered. The team included Dr. Szatmari as psychiatrist, psychologists and social workers. The only services covered by OHIP (Ontario Health Insurance Plan) were Dr. Szatmari’s services. The Hospital paid the psychologists and social workers.

[155] As the head of the outpatient team program, Dr. Szatmari was accountable to the senior psychiatrist who was the director of adolescent services. Dr. Szatmari stated that all referrals regarding adolescents would go to the same intake worker. Dr. Szatmari testified that Leslie Knight (referred to in paragraphs 83-85 above) was an employee of the Hospital and an intake worker for all three programs in the adolescent services department. Referrals were then discussed at intake meetings, which occurred on a weekly basis at the Hospital. Dr. Szatmari testified that the people attending the intake meetings were the director of adolescent services, Dr. Szatmari and Dr. Anderson, who was later replaced by Mr. Ridley. At the meeting, they would decide whether the referred adolescent would go to the outpatient team, the Cool School or the cottage. The vast majority went to the outpatient team.

[156] Dr. Szatmari assumed that the Cool School was a Hospital program and part of the Hospital because of the attendance of Dr. Anderson or Mr. Ridley at the intake meetings. Mr. Szatmari pointed out that personal health information was disclosed during these meetings and no separate consent was requested or provided to share such information with the Cool School. Dr. Szatmari did not know the sources of funding for the Cool School and the cottage program. He was not involved in the operations of these two programs.

[157] Dr. Szatmari agreed that Dr. Anderson was the person who ultimately decided who was going to be accepted to the Cool School. He said that this is what happened during the intake meetings. Dr. Szatmari could not recollect whether there was a policy that all candidates had to be discussed at intake meetings. He said that he would not be surprised if direct referrals for the Cool School were made to Dr. Anderson and if all applicants to the Cool School were not discussed during the intake meetings, i.e., if some candidates “bypassed” the intake meetings. According to Dr. Szatmari, standards were more relaxed and loose at the time.

12. Expert evidence

i. Evidence of Dr. Carol-Anne Hendry

[158] Dr. Carol-Anne Hendry is a clinical psychologist. She has been a member of the College of Psychologists of Ontario since 2013. Her work has focused on developmental trauma, especially childhood and adolescent trauma. In the course of her clinical practice, she has worked with many individuals who experienced sexual abuse. Dr. Hendry was qualified as an expert psychologist in developmental trauma, addiction and substance use disorder and developmental abuse.

[159] For the purpose of her assessment of Mr. Dunford, Dr. Hendry reviewed various documents, including medical and clinical records, and she conducted a two-hour clinical interview with Mr. Dunford. In addition, Mr. Dunford completed standardized questionnaires (Personality Assessment Inventory and Trauma Symptoms Inventory).

[160] Dr. Hendry’s report contains the following paragraphs in a section entitled “Developmental History”:

Mr. Dunford shared that he was the eldest child in his family. He described a challenging and chaotic childhood during which he experienced multiple traumas. He recalled a history of poverty, neglect, and physical and sexual abuse perpetrated by family members and various male boarders who lived in the family home. He remembered feeling protective of his younger brothers, and trying to keep them safe from his father and the men who often lived with them. When Mr. Dunford was approximately eight years old, one of his younger brothers (aged 18 months) died of bone cancer.

Mr. Dunford stated that his mother struggled with adaptive functioning, was illiterate, and had experienced her own history of childhood trauma that significantly impacted her ability to parent and care for her children. His father was reportedly a criminal gambler who was incarcerated for periods of time in his childhood. Mr. Dunford reported that his father was physically and emotionally abusive throughout his childhood.

Mr. Dunford described his adolescence as a tumultuous and challenging period. He stated that, when he was approximately 13 years old, his mother was able to secure non-profit housing in a “bad area” of Hamilton, and he began to “smoke up.” He recalled that he was “just trying to survive” and became vigilant about the safety of his brothers. He shared that, although he “acted out” for several years after his brother died, he began to internalize his distress, and experienced intense periods of anxiety around finances. He recalled that he often acted as a “little husband” to his mother, attempting to provide the support for her that his father did not. [Emphasis in the original.]

[161] Dr. Hendry states in her report that Mr. Dunford reported that: (a) he was a sensitive child who grew up in a chaotic environment; and (b) in early adolescence. he began to use substances (e.g., cannabis and alcohol), and he experienced high levels of anxiety. She also notes that in August 1999, Mr. Dunford’s apartment was reportedly burned down in a fire set by a young child and, based on Mr. Dunford’s clinical file, this incident precipitated a six-month period of severe depressive symptoms. Dr. Hendry also notes an extensive family history of mental health issues, including alcoholism, manic depression and suicides.

[162] Based on Mr. Dunford’s self-report, his responses on standardized questionnaires and a review of his clinical and medical history, Dr. Hendry concluded that he met the criteria for the following diagnoses: (1) major depressive disorder, recurrent episode, severe; (2) alcohol use disorder, severe (remission); and (3) complex post-traumatic stress disorder (“CPTSD”).

[163] Dr. Hendry testified that it was impossible to determine a single cause for these diagnoses. She expressed the opinion that the sexual abuse perpetrated by Dr. Anderson was an important factor that contributed to the CPTSD experienced by Mr. Dunford. She stated that Dr. Anderson represented hope for the future and a trusted figure. However, Dr. Hendry said that she was not able to determine the extent of the impact of Dr. Anderson’s abuse, or put a figure or percentage on it.

[164] Dr. Hendry testified that Mr. Dunford suffered multiple traumas before he reached the age of puberty. Further, his attachment experiences were such that his ability to form healthy relationships was significantly impaired. Dr. Hendry stated during her cross-examination that given Mr. Dunford’s profile, she was not surprised to learn that Mr. Dunford did not complete grade 10 and was not consistently successful in school.

[165] Dr. Hendry acknowledged that Mr. Dunford was a highly traumatized person before he met Dr. Anderson, and that she could not speak as to whether Mr. Dunford would be in the same situation had the incidents with Dr. Anderson not occurred.

[166] Dr. Hendry opined that Mr. Dunford’s daily functioning had been significantly impacted by his experience of complex trauma, including disrupted sleep, mood disturbance, poor attention and concentration, and symptoms of alcohol dependence. With respect to any adverse consequences on Mr. Dunford’s career and ability to work to his potential, Dr. Hendry stated that while it can be hypothesized that Mr. Dunford may have experienced limited potential, trajectory, and scope in his work roles, “the extent to which these domains have been impacted remains unclear and falls outside of the scope of this assessment.”

[167] Dr. Hendry’s prognosis was guarded, with the provision of ongoing psychotherapy. She stated that Mr. Dunford’s psychological recovery was contingent on his ability and willingness to engage in trauma-informed treatment.

[168] Dr. Hendry made recommendations for future psychological treatment. She estimated the total cost of the recommended therapy to be $20,200.00.

ii. Evidence of Stephanie Greenwald

[169] Stephanie Greenwald is a forensic accountant who specializes in litigation accounting with respect to, among other things, economic loss and personal injury. She is a partner in the litigation accounting and valuation services group at RSM Canada Consulting, and the national practice leader for personal injury. She was qualified as an expert in forensic accounting, economic damages and income loss claims.

[170] Ms. Greenwald was asked by the Plaintiff “to calculate the past and future income losses sustained by the Plaintiff as a result of sexual abuse incidents […] suffered during the Winter of 1982/83”. For the purpose of her expert opinion, Ms. Greenwald used the following assumptions, among others:

a. As a consequence of his issues related to 1982-1983 sexual abuse incidents, Mr. Dunford is partially and permanently disabled from gainful employment in a competitive employment environment and unable to function at his pre-incident earning capacity.

b. Absent the incidents, he would likely have completed a university education and possibly an advanced degree, if needed to accomplish his goal of becoming a professor, and worked at his pre-incident earning capacity to normal retirement at age 65 or longer.

[171] These assumptions were used, among other things, because determining the cause of a loss of income is outside of Ms. Greenwald’s expertise.

[172] Ms. Greenwald considered it appropriate to present a range of alternative levels of educational achievement and income loss scenarios, absent the incidents. She calculated Mr. Dunford’s pre-incident earning capacity based on three scenarios: (1) high school diploma, with earnings commencing on September 1, 1983, at age 20; (2) university bachelor’s degree in humanities, with earnings commencing on September 1, 1987, at age 24; and (3) university professors (including lecturers without tenured professorship), with earnings commencing on September 1, 1987, at age 24. The calculations are based on Statistics Canada 2016 census data, more particularly on the inflation adjusted average wages and salaries in Ontario, by relevant age group of males, full and part time. Employer-paid benefits of 11.5% were added under all scenarios.

[173] Ms. Greenwald’s opinion is that Mr. Dunford’s past income losses to February 6, 2023 total $1,051,626.00 under the first scenario (high school diploma), $1,656,243.00 under the second scenario (university bachelor’s degree) and $2,332,205.00 under the third scenario (university professor).

[174] Ms. Greenwald also calculated the present value of Mr. Dunford’s future income losses to age 65. Her calculations include a productivity factor of 0.8% per annum. Ms. Greenwald’s opinion is that Mr. Dunford’s future income losses total $343,496.00 under the first scenario, $578,204.00 under the second scenario, and $825,371.11 under the third scenario.

[175] Ms. Greenwald expressed the view that for young earners who have not embarked on a career yet, it is best to use average earnings based on Statistics Canada data.

[176] During her cross-examination, Ms. Greenwald stated that she did not know that Mr. Dunford had been diagnosed with COPD two years ago and was applying for disability benefits. She agreed that these facts could impact the claim for future loss of income if this impairment has nothing to do with the sexual abuse.

iii. Evidence of Professor Douglas Edward Hyatt

[177] Douglas Edward Hyatt has been a Professor at the University of Toronto’s Rotman School of Management and Centre for Industrial Relations since 2002 (Professor Emeritus since 2021). He was qualified as an expert in economics and labour relations to opine on the issue of economic loss. He was asked to comment on the estimates advanced by the Plaintiff’s economic loss expert as to the past and future loss of earnings suffered by Mr. Dunford as a result of alleged sexual abuse that occurred during the winter of 1982-1983. Professor Hyatt was also asked to provide alternative estimates of the past and future losses of earnings suffered by Mr. Dunford.

[178] Professor Hyatt states in his report that as an economist, he is not able to comment on the extent to which the earnings of Mr. Dunford have been reduced as a result of the alleged sexual abuse. However, he refers to studies that suggest that the impact of sexual abuse suffered by young males has a relatively modest adverse impact on their adult earnings.

[179] Professor Hyatt estimated the past and future losses of earnings of Mr. Dunford based upon three scenarios of loss of competitive advantage: (1) loss of competitive advantage equal to 4.42% of Mr. Dunford’s baseline earnings (percentage representing the reduced likelihood of participation in the labour force); (2) loss of competitive advantage equal to 9.51% of Mr. Dunford’s baseline earnings (percentage representing a reduction in earnings of employed men of 4.87% combined with a reduced likelihood of labour force participation of 4.42%); and (3) loss of competitive advantage equal to 13.78% of Mr. Dunford’s baseline earnings (percentage representing a reduction in earnings of employed men of 8.96% combined with a reduced likelihood of labour force participation of 4.42%). These percentages are derived from the studies reviewed by Professor Hyatt, with some adjustments.

[180] Professor Hyatt was asked to assume that Mr. Dunford’s baseline earnings were the average of his actual earnings over the years 1991 to 1996, which is the period during which Mr. Dunford experienced his highest consecutive annual earnings. Professor Hyatt calculated the average to be $54,341.00. To this average, he added 12% to reflect the positive contingency of fringe benefits provided by the employer. Professor Hyatt did not use Mr. Dunford’s actual earnings because he does not accept that Mr. Dunford’s low income was entirely due to the sexual abuse allegedly perpetrated by Dr. Anderson.

[181] In calculating Mr. Dunford’s future loss of earnings, Professor Hyatt used the interest rate prescribed by Rule 53.09 of the Rules of Civil Procedure and did not add a productivity factor. Professor Hyatt’s view is that it is inappropriate to reduce the statutory real interest rate prescribed by Rule 53.09 by the allowance for productivity increases, as proposed by Ms. Greenwald.

[182] Professor Hyatt explained that he took the approach of looking at the loss of competitive advantage to disentangle factors other than sexual abuse. He acknowledged that he did not look at the actual impact of the alleged sexual abuse on Mr. Dunford. Instead, he relied on studies and used an average percentage. He agreed that it was possible that the impact on Mr. Dunford was different than the average percentage in the studies. He also agreed that the percentages in the studies did not reflect the nature of the sexual abuse and the number of incidents, among other things.

[183] The estimates provided by Professor Hyatt do not isolate the impact of the sexual abuse alleged against Dr. Anderson from the sexual abuse that Mr. Dunford indicated he suffered earlier in his childhood.

[184] Professor Hyatt’s calculations of Mr. Dunford’s past loss of earnings are $73,089.00 under his first scenario (4.42% loss of competitive advantage), $157,258.00 under his second scenario (9.51% loss of competitive advantage) and $227,867.00 under his third scenario (13.78% loss of competitive advantage). His calculations of Mr. Dunford’s future loss of earnings are $13,650.00 under the first scenario, $29,369.00 under the second scenario, and $42,556.00 under the third scenario.

B. SUBMISSIONS OF THE PARTIES

1. Submissions of the Plaintiff

[185] The Plaintiff submits that Dr. Anderson committed sexual battery. The Plaintiff points out that Dr. Anderson stood in a relationship of power, trust and authority to him as his tutor and the director of the Cool School. The Plaintiff argues that at the time of the sexual incidents, Dr. Anderson held his life in the balance because the Cool School represented the Plaintiff’s last hope of achieving a high school equivalent education so that he could attend university. The Plaintiff states that he never consented to the sexual activity with Dr. Anderson, and that Dr. Anderson misused his position of trust, power and authority and his knowledge of the Plaintiff’s vulnerabilities to perpetrate the sexual batteries.

[186] The Plaintiff also argues that a teacher-student relationship is a fiduciary one and that Dr. Anderson stood in a fiduciary relationship to the Plaintiff. The Plaintiff submits that Dr. Anderson breached his fiduciary duty to the Plaintiff by placing his own selfish sexual gratification over the Plaintiff’s best welfare and education-related interests.

[187] The Plaintiff’s position is that the Hospital is vicariously liable for the actions of Dr. Anderson. The Plaintiff heavily relies on the decision in John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27 (“St. John’s”) in support of his position that the relationship between the Hospital and the Cool School and Dr. Anderson was sufficiently close to make the imposition of vicarious liability on the Hospital appropriate.

[188] The Plaintiff submits that the absence of a contract or direct employment relationship between the Hospital and Dr. Anderson does not mean that Dr. Anderson was not carrying out the Hospital’s work. The Plaintiff states that the Cool School was a program operated through the Hospital’s adolescent services department and fell under that department’s mandate to treat and support adolescents who were experiencing mental health and related challenges.

[189] The Plaintiff argues that while Dr. Anderson had the discretion to hire and fire employees, the Hospital remained the ultimate authority over Dr. Anderson and the Cool School. The Plaintiff states that Dr. Anderson was accountable to the clinical director of the Hospital’s adolescent services department, and refers to the following facts:

a. the Cool School was operated as a Hospital program, under the auspices of the Hospital’s adolescent services department;

b. Mr. Ridley attended monthly meetings with Hospital administration representatives;

c. the Hospital provided security and maintenance services to the Cool School; and

d. the Hospital had a list of staff and students enrolled in the Cool School.

[190] With respect to the factor of public perception, the Plaintiff argues that the Cool School was viewed as a Hospital program. Further, Cool School documents were sent on Hospital letterhead and some documents were signed by an intake worker employed by the Hospital. The Plaintiff notes that in the normal course, all Cool School referrals, admissions and discharges went through the Hospital’s adolescent services department, and all students were registered as Hospital outpatients. The Plaintiff also refers to newspaper articles.

[191] The Plaintiff submits that the Hospital was not only a vessel to transfer money from Ministries to the Cool School. Rather, the Hospital had financial and administrative authority over the Cool School. The Plaintiff points out that the Cool School operated on the grounds of the Hospital, in a Hospital building, from approximately 1973 until some point in 1983. In addition, when the Cool School moved off Hospital grounds, the Hospital remained responsible for renting the space in the new building. The Plaintiff also refers to the fact that referrals to all three programs in the adolescent services department, including the Cool School, were reviewed by an intake worker and discussed at weekly meetings in which Dr. Anderson or Ted Ridley participated to determine which referrals would be assigned to which program.

[192] The Plaintiff’s position is that the Hospital had the authority and ability to exercise supervision and control over Dr. Anderson, but it chose not to do so.

[193] The Plaintiff submits that Dr. Anderson’s sexual abuse is sufficiently related to conduct authorized by the Hospital to justify the imposition of vicarious liability. On this point, he relies heavily on the case C.O. v. Williamson, 2020 ONSC 3874 (“C.O.”). The Plaintiff argues that Dr. Anderson took steps to foster his relationship with the Plaintiff and groom him. He points out that, as part of the Cool School program, Dr. Anderson held one-on-one meetings at his house in the evening.

[194] The Plaintiff argues that he was vulnerable to the wrongful exercise of Dr. Anderson’s power and that the Hospital afforded Dr. Anderson the opportunity to abuse his power. The Plaintiff notes that the Cool School was an alternative school designed for vulnerable students who were unable to learn in a traditional high school environment, and that the only way students could evidence their completion of the Cool School program was by obtaining a letter of equivalency which required Dr. Anderson’s sign off.

[195] The Plaintiff’s position is that the Hospital was also negligent. The Plaintiff submits that the Hospital was at all material times an owner and occupier of the Cool School. The Plaintiff argues that the Hospital’s role in operating a program for the public benefit, the Hospital’s role in operating an inherently risky program, the paternalistic relationship of supervision and control inherent in the Cool School enterprise (i.e., teacher-student), and the Hospital’s role as an owner/occupier of the Cool School, impose an affirmative duty of care on the Hospital to take reasonable steps to ensure the safety of the people permitted on the premises.

[196] According to the Plaintiff, the Hospital breached its affirmative obligations by doing nothing. As a result, Dr. Anderson was able to build a relationship of trust and psychological intimacy with the Plaintiff, to groom and manipulate him, and ultimately to abuse him sexually. The Plaintiff submits that the Hospital could have discovered the risk posed by Dr. Anderson and prevented the abuse had it satisfied the affirmative duty of care it owed to the Plaintiff. The Plaintiff argues that the Hospital cannot now claim ignorance as it did not even turn its mind to the safety of its patients/students at the Cool School, who the Hospital knew were vulnerable adolescents studying on its grounds.

[197] The Plaintiff states that the Hospital was willfully blind to the dangers posed by Dr. Anderson. He argues that to allow the Cool School to operate without any established rules of conduct or regular supervision, and to leave Dr. Anderson in his position as director of the Cool School and tutor, without adequate supervision, was to take a chance, and the risk materialized in abuse. The Plaintiff also argues that had the Hospital established and implemented even a minimal complaint/reporting policy, it would likely have prevented Dr. Anderson from perpetrating the abuse, or at least the second incident.

[198] With respect to causation, the Plaintiff submits that the “but for” test is satisfied in this case. He states that he clearly suffered some harm as a result of Dr. Anderson’s abuse. He points out that the harms that he suffered were detailed in his and Dr. Hendry’s testimonies. The Plaintiff notes that it is not possible to determine the specific harms caused by each traumatic event that he experienced. He argues that this is because his injuries are indivisible and that Dr. Anderson played a part in causing all of his psychological injuries. In such circumstances, the Plaintiff states that he is entitled to collect the entirety of the damages from the Hospital. In the alternative, the Plaintiff states that it is left to the discretion of the Court to determine what portion of the harms of which Dr. Anderson was a partial cause. The Plaintiff refers to a number of cases regarding the appropriate range for general and aggravated damages for sexual assault.

[199] Based on the evidence of Dr. Hendry, the Plaintiff claims damages in the amount of $20,200.00 for the costs of future treatment.

[200] The Plaintiff submits that there is a real and substantial possibility that the sexual abuse perpetrated by Dr. Anderson caused him to suffer economic loss. He refers to and relies on the evidence of Ms. Greenwald. He argues that Ms. Greenwald’s analysis is a credible, reliable and reasonable extrapolation of the income he would have earned absent Dr. Anderson’s abuse. He states that the evidence of Messrs. Ridley, Turkstra and Boardman regarding the ability of Cool School students to complete post-secondary education supports the likelihood of Ms. Greenwald’s scenarios 2 and 3. The Plaintiff points out that it is within the Court’s discretion to apply any negative contingencies that it sees fit.

[201] The Plaintiff argues that Professor Hyatt conducted an inappropriate income loss/loss of competitive advantage analysis. He submits that the Court must look at what he actually earned in order to determine his income loss.

2. Submissions of the Defendant

[202] The Defendant submits that a reasonable person in Dr. Anderson’s position would have thought that Mr. Dunford consented to the sexual touching on both occasions. The Defendant points out that Mr. Dunford did not say no, did not tell Dr. Anderson to stop and did not push Dr. Anderson away. It states that at no point throughout the sexual interactions was Dr. Anderson physically violent or did he verbally threaten Mr. Dunford. The Defendant notes that, in contrast, Mr. Dunford had no difficulty asking Dr. Anderson to stop purple-nurpling him.

[203] The Defendant argues that Mr. Dunford had the capacity to consent, despite the fact that he had consumed beer and scotch. It submits that while there was a tutor-student relationship between Dr. Anderson and Mr. Dunford, the operations of the Cool School and Mr. Dunford’s age at the time (19) minimize the power imbalance, if one existed at all. The Defendant repeats that Mr. Dunford had previously expressed his free will to Dr. Anderson with respect to purple-nurpling and did not have concerns about the power imbalance then. Mr. Dunford was also able to express what he wanted after the second encounter, i.e., that he did not want this to happen again.

[204] With respect to the issue of vicarious liability, the Defendant submits that the Plaintiff failed to prove that Dr. Anderson was an employee of the Hospital or in a sufficiently close relationship that satisfies the policy goals outlined in Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534 (“Bazley”). The Defendant states that Dr. Anderson was never under the control of the Hospital, nor did he receive a salary from the Hospital. Dr. Anderson’s role at the Cool School was not at the request of the Hospital. Dr. Anderson did not report to the Hospital, nor did the Hospital supervise him. The Defendant notes that while Dr. Anderson had privileges at the Hospital, his privileges were separate and apart from the Cool School.

[205] The Defendant states that Dr. Anderson was not the Hospital’s agent as he did not have the authority to bind the Hospital. For instance, Dr. Anderson could not enter the lease on the Hospital’s behalf. The Defendant also points out that the Hospital did not exercise any control over Dr. Anderson’s role at the Cool School.

[206] The Defendant submits that it is well established that physicians with privileges to practice medicine at hospitals are independent contractors and not hospital employees. It notes that Dr. Anderson was employed and paid by McMaster University. The Defendant states that absent exceptional circumstances, the relationship between an employer and an independent contractor is not one that attracts vicarious liability.

[207] The Defendant argues that the Hospital had no control over the operations of the Cool School. Among other things: (a) the Hospital was not involved in developing or implementing the curriculum; (b) while the Hospital employed the tutors, they were recruited, trained and supervised by Dr. Anderson; and (c) funding for the Cool School program was dependent on support from the Ministry, not the Hospital. The Defendant submits that Dr. Anderson’s role at the Cool School was far too independent from the Hospital for the Hospital to take any measures to prevent the alleged conduct. Consequently, a finding of vicarious liability would have no deterrent effect.

[208] The Defendant states that even if it is found that Dr. Anderson was in a sufficiently close relationship with the Hospital, the Hospital did not authorize Dr. Anderson’s alleged conduct and such conduct cannot be considered to be unauthorized acts so connected with authorized acts that they may be regarded as modes of doing an authorized act. The Defendant submits that there are significant differences between C.O. and the case at bar. Among other things, the Hospital did not exercise authority over Mr. Dunford and Dr. Anderson, and did not employ Dr. Anderson. The Defendant refers to other cases where courts have refused to hold school boards vicariously liable for sexual abuse perpetrated by teachers.

[209] The Defendant states that it is not vicariously liable for the actions of Dr. Anderson for the following reasons:

a. The Hospital did not exercise authority over Dr. Anderson or the Cool School tutors. Therefore, it cannot be said that it allowed Dr. Anderson to abuse his power as a tutor. Further, Dr. Anderson’s opportunity for misconduct was not intimately connected to his functions as a tutor.

b. The alleged abuse did not further the Hospital’s aims in any respect.

c. The relationship between a tutor and a student is not inherently intimate. Acting as a positive role model does not equal to intimacy and mentoring does not put an employee on the slippery slope to sexual abuse. The risk of abuse was not substantially increased by the Cool School’s encouragement of tutors to act as mentors and role models, and the encouragement of students to open up to their turors.

d. Dr. Anderson had the power to provide grades and maintain classroom discipline.

e. While some vulnerability is involved in a student-tutor relationship, Mr. Dunford’s vulnerability was reduced because he was 19 years old at the time of the alleged abuse, he was living independently and had not led a sheltered life. In any event, vulnerability itself des not prove the strong link between the Hospital and the alleged abuse that imposition of no-fault liability requires.

[210] The Defendant’s position is that the Hospital did not significantly or materially increase the risk of Mr. Dunford being sexually abused by Dr. Anderson. The Defendant points out that the alleged abuse occurred off the premises and after hours. It argues that the alleged abuse is only coincidentally linked with Dr. Anderson’s duties as a Cool School tutor, and that imposing vicarious liability where the conduct giving rise to the claim is only coincidentally linked to the Hospital’s activities would not be fair. The Defendant also states that vicarious liability in this matter would have no deterrent effect on the Hospital since the Cool School ceased operating in or around 1989 and the Hospital does not currently act as a funding vehicle for any alternative schools for youth.

[211] With respect to the claim for negligence, the Defendant submits that the relationship between the Hospital and the Cool School does not fit into an established or analogous duty of care relationship. The Defendant states that the relationship between the Hospital and Cool School students significantly differs from the relationship between school boards and students. The Defendant notes that the Hospital’s relationship with the Cool School was not governed by the Education Act, R.S.O. 1990, c. E.2. The Hospital did not establish and exercise authority over the Cool School curriculum, and did not make policies regarding the appropriate relationships between the Hospital, tutors and students. According to the Defendant, the Hospital was simply a funding vehicle used to distribute funds from the Ministry to the Cool School.

[212] The Defendant’s position is that Mr. Dunford has failed to prove that he was in a relationship of sufficient closeness with the Hospital where it would be reasonable to impose a duty of care on the Hospital. The Defendant points out that by Mr. Dunford’s own admission, all of his interactions were with Dr. Anderson. It states that aside from having an outpatient file at the Hospital for a brief period of time, Mr. Dunford did not meet with anyone at the Hospital or have any other type of contact with the Hospital.

[213] The Defendant argues that if the Court finds that the Hospital owed all Cool School students a duty of care, the duty owed to Mr. Dunford ceased once he was discharged from the Cool School in July 1982. The Defendant states that the Hospital had no knowledge that Mr. Dunford had re-engaged with the program after being discharged in July 1982. The Defendant notes that this is not a case where Mr. Dunford disclosed the alleged abuse to anyone at the Cool School or the Hospital.

[214] If a duty of care is found, the Defendant submits that the standard of care must be considered in the context of the time period in which the alleged negligence occurred. The Defendant points out that Mr. Dunford did not call any expert evidence to opine on the requisite standard of care of the Hospital with respect to the Cool School operation in the early 1980s. The Defendant argues that the absence of expert evidence in this regard prevents the Court from adequately assessing whether the Hospital’s conduct fell below he requisite standard of care.

[215] With respect to damages, the Defendant acknowledges that Mr. Dunford has suffered trauma in his life. However, it states that the evidence shows that he suffered substantial trauma, including several instances of sexual abuse, before he had ever met Dr. Anderson. The Defendant does not accept that the damages advanced by Mr. Dunford arise from his interactions with Dr. Anderson.

[216] The Defendant submits that Mr. Dunford’s psychological trauma and subsequent problems with alcoholism were the result of his impoverished upbringing and the sexual, physical and emotional abuse, as well as the neglect as a child and throughout his adolescence from his parents and others in his surroundings, prior to his encounter with Dr. Anderson. In the event the Court finds that there was sexual battery for which Mr. Dunford is entitled to compensation, the Defendant argues that the amount awarded should not exceed $100,000.00.

[217] As for Mr. Dunford’s income loss claim, the Defendant points out that Mr. Dunford had issues in childhood and adolescence trying to function in the traditional school environment, and he considered himself to be more intelligent than other students and colleagues around him. The Defendant submits that this same problem plagued him at McMaster University and while employed.

[218] The Defendant argues that absent the Cool School, Mr. Dunford would not have obtained high school equivalency and, even with the Cool School, his ability to complete university and/or complete a Ph.D. and become a philosophy professor is, at best, nothing more than speculation or a convenient assumption. The Defendant criticizes the assumptions made by Ms. Greenwald in her expert report and submits that Professor Hyatt took a much more reasonable approach. According to the Defendant, if the Court finds that Dr. Anderson’s alleged abuse negatively impacted Mr. Dunford’s ability to earn past income, Professor Hyatt’s methods and conclusions ought to be preferred over Ms. Greenwald’s.

[219] The Defendant submits that if Mr. Dunford is successful on liability, he is not entitled to any damages for future income loss. The Defendant states that Mr. Dunford was diagnosed with COPD in March 2021, is applying for disability benefits and believes that he only has around ten years to live.

[220] The Defendant does not dispute that Mr. Dunford would benefit from the therapy recommended by Dr. Hendry, but it states that it is clear from Dr. Hendry’s evidence that the need for the treatment does not result solely, or even principally, from Dr. Anderson’s actions.

C. DISCUSSION

1. Observations regarding the credibility and reliability of witnesses

[221] I found most of the witnesses to be credible and reliable. However, I wish to make a few comments regarding the evidence of Messrs. Dunford and Boardman.

[222] Mr. Dunford’s evidence was not always consistent during his examination-in-chief and his cross-examination. Not infrequently, when asked more questions about a subject, his evidence would change to a certain extent. When he was confronted during his cross-examination about the fact that his evidence was inconsistent with what he had said during his examination-in-chief, he was prepared to change his evidence again. This showed that his memory of the events was not very good and somewhat unreliable, which is not surprising given that the events occurred a long time ago. More importantly, however, it also showed that Mr. Dunford was not really concerned about being inaccurate, or about embellishing or exaggerating.

[223] I also note that Mr. Dunford denied, contradicted, or implicitly or expressly downplayed many statements attributed to him in a number of medical records regarding the nature and extent of the abuse and other issues that he experienced during his childhood. In my view, Mr. Dunford attempted to downplay such issues at trial in order to attribute a significantly larger part of his issues/damages to the sexual incidents with Dr. Anderson.

[224] I did not find Mr. Boardman’s evidence very reliable. He did not have a good memory. After being asked a question, he would often say “let me see”, and it regularly appeared that he was guessing and filling in the blanks. Further, there were a number of discrepancies between his evidence and Mr. Dunford’s evidence with respect to years and dates. For instance, their evidence was not consistent with respect to when Mr. Dunford’s girlfriend attended the Cool School. Also, Mr. Boardman’s answers to the questions regarding his consumption of alcohol were not always responsive. However, I accept the general lines of his testimony.

2. Sexual battery

[225] To prove the tort of sexual battery, a plaintiff must prove on a balance of probabilities that the alleged perpetrator intentionally touched the plaintiff in a sexual manner, and that the interference with the plaintiff’s body was harmful or offensive. This second element is implied in the context of a sexual battery, assuming a lack of consent. Generally speaking, all non-trivial contact, i.e., contact outside the exceptional category of contact that is generally accepted or expected in the course of ordinary life and activities, is prima facie offensive. Consent is an affirmative defence that must be raised and proved by the defendant. See P.P. v. D.D., 2017 ONCA 180 at para. 71 (“P.P.”); Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 at paras. 3, 6, 15, 16, 18, 19, 22, 26; and Ahluwalia v. Ahluwalia, 2023 ONCA 476 at para. 62.

[226] An apparent consent to sexual touching will be invalid if it has been obtained by duress, force or threat of force, given under the influence of drugs, secured through deceit or fraud as to the nature of the alleged perpetrator’s conduct, or obtained from someone who was legally incapable of consenting or where an unequal power relationship is being exploited. See P.P. at para. 72 and Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226 at 246-247, 256 (Norberg”). In an unequal power relationship, the alleged perpetrator will usually have an ability to dominate and influence. Cases have recognized the ability to dominate and influence that is present in a teacher-student relationship: see Norberg at 255. If the type of sexual relationship at issue is one that is sufficiently divergent from community standards of conduct, this may alert the court to the possibility of exploitation. See Norberg at 256.

[227] We do not have Dr. Anderson’s version of events given that he passed away almost thirty years ago. However, based on the evidence before me, I am satisfied on the balance of probabilities that Dr. Anderson committed the tort of sexual battery against Mr. Dunford. I accept Mr. Dunford’s evidence regarding the actions of Dr. Anderson during the two incidents, which establishes that Dr. Anderson intentionally touched Mr. Dunford in a sexual manner. Further, Dr. Anderson’s interference with Mr. Dunford’s body did not constitute trivial contact that is generally accepted and expected in the course of ordinary activities. Therefore, the touching was offensive.

[228] The Defendant has not established the affirmative defence of consent on a balance of probabilities. In my view, no valid consent could be given in the circumstances given the unequal power relationship between Dr. Anderson and Mr. Dunford, which was exploited by Dr. Anderson.

[229] Dr. Anderson was Mr. Dunford’s tutor and the director of the Cool School. He was the person who was going to decide whether Mr. Dunford could obtain a letter of equivalency and be able to realize his dream to go to university. To the knowledge of Dr. Anderson, Mr. Dunford – like most of the students at the Cool School – was a vulnerable youth given his educational, family and socio-economic history. Dr. Anderson would or should have known that he had importance and stature in the eyes of Mr. Dunford, and that Mr. Dunford would not want to offend Dr. Anderson or do anything that would disrupt their relationship. Given this, Dr. Anderson clearly had the ability to dominate and influence Mr. Dunford. See Norberg at 255.

[230] Dr. Anderson exploited this unequal power relationship by, among other things, providing significant quantities of alcohol (including hard liquor) to Mr. Dunford during meetings that were supposed to be school-related, going into Mr. Dunford’s apartment at night, and initiating sexual contact with Mr. Dunford without taking any steps to ascertain whether Mr. Dunford consented to be kissed or be sexually touched. Such conduct on the part of someone who is in a position equivalent to a teacher or school principal is markedly divergent from what the community would consider acceptable. Dr. Anderson knew about Mr. Dunford’s vulnerability and that Mr. Dunford was looking up to him. The latter was encouraged by Dr. Anderson through his conduct. Dr. Anderson used his power in the relationship to his own advantage and to satisfy his own sexual interests, to the detriment of Mr. Dunford. The unequal power between the parties and the exploitative nature of the two sexual incidents removed the possibility of Mr. Dunford providing meaningful consent to the sexual contact. See Norberg at 261.

[231] Therefore, I conclude that Dr. Anderson committed sexual battery against Mr. Dunford. The real question in this case is whether the Hospital can be held liable for what occurred.

[232] Given my conclusion on the issue of vicarious liability, I find that it is unnecessary to discuss the Plaintiff’s allegation that Dr. Anderson’s conduct also constituted a breach of a fiduciary duty that he owed to Mr. Dunford.

3. Vicarious liability

i. General legal principles

[233] Vicarious liability is a legal doctrine that holds one person responsible for the misconduct of another because of the relationship between them: see 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 at paras. 2, 25 (“Sagaz”). Vicarious liability is considered to be a species of strict liability because it requires no proof of personal wrongdoing on the part of the person who is subject to it. See Sagaz at para. 26.

[234] The imposition of vicarious liability is supported by two main policy grounds: fair and effective compensation and deterrence of future harm. See Bazley at paras. 30-34 and K.L.B. v. British Columbia, 2003 SCC 51 at para. 20 (“KLB”).

[235] To make out a successful claim for vicarious liability, a plaintiff must establish the following:

a. The relationship between the tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim for vicarious liability appropriate.

b. The tort is sufficiently connected to the tortfeasor’s assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise.

These two criteria are related. A tort will only be sufficiently connected to an enterprise to constitute a materialization of the risks introduced by it if the tortfeasor is sufficiently closely related to the person against whom liability is sought. See KLB at para. 19.

[236] Given my conclusions in this case, my analysis below focuses on the first criterion, i.e., whether there is a sufficiently close relationship between the tortfeasor and the person against whom liability is sought. With respect to this criterion, the most common relationship that gives rise to vicarious liability is the relationship between employer and employee. This is distinguished from the relationship between an employer and an independent contractor which, subject to certain exceptions, usually does not give rise to a claim for vicarious liability. See Sagaz at para. 33.

[237] Imposing vicarious liability in the context of an employer-independent contractor relationship will not generally satisfy the two policy goals underlying the doctrine of vicarious liability. Compensation will not be fair where the organization fixed with responsibility for the tort is too remote from the tortfeasor for the latter to be acting on behalf of it: in such a case, the tort cannot reasonably be regarded as a materialization of the organization’s own risks. Further, vicarious liability will have no deterrent effect where the tortfeasor is too independent for the organization to be able to take any measures to prevent such conduct. Hence, the relationship of employer to independent contractor does not generally give rise to vicarious liability. See KLB at para. 20.

[238] The central question to determine whether a person is an employee or an independent contractor is whether the person who has been engaged to perform the services is performing them as a person in business on their own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. Other factors to consider include whether the worker provides their own equipment, whether the worker hires their own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of their tasks. See Sagaz at para. 47. These factors do not constitute an exhaustive list and there is no set formula as to their application. The relative weight of each factor will depend on the particular facts and circumstances of the case. A functional inquiry must always occur, i.e., a search for the total relationship of the parties. See Sagaz at paras. 46, 48 and KLB at para. 21. In the context of a non-profit enterprise, the focus of the inquiry is on whether the tortfeasor was acting on their own account or acting on behalf of the employer. See KLB at para. 21.

[239] I note that it is a well-established principle that a hospital is not liable for the actions and decisions of a physician with privileges at the hospital. See, e.g., Ferroni v. St. Joseph’s Health Centre, 2012 ONSC 1208 at para. 20 and Whiteman v. Iamkhong, 2013 ONSC 2175 at para. 108.

ii. Application to this case

[240] The relevant relationship to consider is the relationship between the Hospital and Dr. Anderson, not the relationship between the Hospital and the Cool School, although the latter is an important contextual factor.

[241] Dr. Anderson was employed by McMaster University. He was not an employee of the Hospital and he was not paid by the Hospital for his work at the Cool School. While Dr. Anderson held privileges at the Hospital, I accept the Defendant’s submission that these privileges were separate and apart from the Cool School. In any event, if they were not, the principle that a hospital is not liable for the actions and decisions of a physician with privileges at the hospital would apply.

[242] The fact that the Cool School was described as a Hospital program is not determinative in any way with respect to the closeness of the relationship between the Hospital and Dr. Anderson. If it were, the general principle that a hospital is not liable for the actions and decisions of a physician with privileges at the hospital could not exist as it would be defeated each time that a physician would participate in a hospital program, broadly defined, e.g., an outpatient program.

[243] In my view, the relationship between Dr. Anderson and the Hospital in relation to Dr. Anderson’s role at the Cool School was not sufficiently close as to make a claim for vicarious liability appropriate. Looking at the total relationship between the Hospital and Dr. Anderson, I find that in the context of his role at the Cool School, Dr. Anderson was acting on his own account and was not acting on behalf of the Hospital.

[244] Dr. Anderson was not the Hospital’s agent and had no authority to bind the Hospital. Further, the Hospital had very little control over Dr. Anderson’s activities at the Cool School. The Hospital had no involvement in the curriculum. The Cool School staff reported to Dr. Anderson. Dr. Anderson made all the decisions with respect to the admission of students. Based on Mr. Ridley’s evidence, most of the students who came to the Cool School were referred to Dr. Anderson personally. In addition, the success of the program depended entirely or in large part on Dr. Anderson’s name and the weight given by McMaster University and other universities to the letters of equivalency that he signed.

[245] With respect to the other relevant factors to consider:

a. Own equipment. The Cool School program – which can be analogized to the worker’s “equipment” – was created and established principally by Dr. Anderson. The Hospital had no role in the development and implementation of the curriculum, and did not approve the changes made to the curriculum over the years.

b. Own helpers. Dr. Anderson was the decision-maker with respect to the hiring of the tutors. He is the one who recruited and hired Mr. Szatmari and Mr. Ridley. Despite the fact that Mr. Ridley was paid by, and an employee of, the Hospital, his evidence was that he reported to Dr. Anderson and was accountable to him.

c. Financial risk. At the relevant time (1982-1983), it does not appear that Dr. Anderson was taking a financial risk with respect to the Cool School, although he was not remunerated for his work. However, it appears that he may have taken a financial risk at the beginning of the project, when the Cool School was funded through money that he secured, including speaking engagements and donations. There is no evidence before me that the Hospital took a financial risk with respect to the Cool School because the program was funded by the Ministry.

d. Responsibility for investment and management. Dr. Anderson’s degree of responsibility for management of the Cool School program was exceptional. He was the sole and ultimate decision-maker with respect to all important aspects of the program.

e. Opportunity for profit. The factor of the worker’s opportunity to profit does not apply in the context of this case.

[246] In my view, the fact that the Hospital was the Cool School’s “sublessor” is insufficient to create a close relationship between the Hospital and Dr. Anderson. Further, the limited involvement of Hospital intake workers, the fact that some intake correspondence was written on Hospital letterhead, and the fact that Dr. Anderson attended internal Hospital intake meetings do not change the fact that the Hospital had very little control over Dr. Anderson’s activities. This is illustrated by the fact that some students at the Cool School, including Mr. Dunford, “bypassed” the intake process and were admitted directly by Dr. Anderson.[^2] In addition, Dr. Szatmari’s evidence was that Dr. Anderson was the person who ultimately decided who was going to be accepted to the Cool School. The Hospital did not force him to admit a student who he did not want to admit.

[247] The fact that the Hospital administered the funding provided by the Ministry for the Cool School is, again, insufficient to create a sufficiently close relationship between the Hospital and Dr. Anderson so as to make a claim for vicarious liability appropriate. Given that the Hospital had no input into the contents and activities of the Cool School program, it could not decide how the funds were to be spent, but could merely ensure that the budget was respected. Further, given that the funds were specifically provided for the Cool School by the Ministry, the Hospital could not withhold the funds. While the Hospital had general and administrative financial responsibilities in relation to the Cool School, it cannot be said that it had financial control over it.

[248] I am not satisfied that Dr. Anderson, as the director of the Cool School and a tutor, could reasonably have been publicly perceived as acting on account of the Hospital: see KLB at para. 25. A school is not typically an activity pursued by a hospital. Further, the Manual, while recognizing the assistance provided by the Hospital, sought to distance the Cool School from the Hospital by telling the students to not “get paranoid about the fact that we are sponsored by a hospital.” Further, the two newspaper articles about the Cool School that were marked as exhibits during the trial only mention the Hospital once and do not describe the relationship between the Hospital and the Cool School.[^3] As for the fact that administrative assistance may have been provided to the Cool School by Hospital intake workers who used Hospital letterhead when sending correspondence, this does not disclose, without more, a close relationship. The fact that Dr. Anderson wrote Mr. Dunford’s letter of equivalency on Hospital letterhead is similarly insufficient. One would not argue, for instance, that the mere fact that a physician sends a letter on hospital letterhead defeats the general principle that a hospital is not liable for the actions and decisions of a physician with privileges at the hospital. See also Sagaz at paras. 51 and 56.

[249] Thus, I conclude that the relationship between Dr. Anderson and the Hospital was not sufficiently close as to make a claim of vicarious liability appropriate. The extent of control in this case is even less than in Sagaz. In that case, the Supreme Court stated that although Sagaz controlled what was done, the tortfeasor controlled how it was done. In the present case, the Hospital controlled neither what was done nor how it was done. See Sagaz at para. 55.

[250] Like the foster parents in KLB, Dr. Anderson discharged the goals of the Cool School in a highly independent manner, free from close control by the Hospital. Dr. Anderson had complete control over the organization and management of the Cool School, and the Hospital did not supervise or interfere with Dr. Anderson’s role at the Cool School. See KLB at para. 23. In such circumstances, imposing vicarious liability on the Hospital would not satisfy the two policy goals underlying the doctrine of vicarious liability. Compensation would not be fair given that the Hospital was too remote from Dr. Anderson for him to be acting on its behalf and for his misconduct to be regarded as a materialization of the Hospital’s own risks. Further, vicarious liability would have no deterrent effect given that Dr. Anderson was too independent for the Hospital to be able to take any measures with respect to his conduct. See KLB at para. 20.

[251] As stated above, Mr. Dunford heavily relies on the decision of the Nova Scotia Court of Appeal in St. John’s in support of his position with respect to the first prong of the test to establish vicarious liability. In that case, the Nova Scotia Court of Appeal found that the Archdiocese of St. John’s was vicariously liable for the Christian Brothers in relation to sexual abuse committed at an orphanage during the 1950s. In my view, the facts of the present case can be distinguished from the facts in St. John’s in many ways. Among other things:

a. In St. John’s, the Court found that the Archdiocese invited the Christian Brothers to come to St. John’s to staff its orphanage. Contrary to the situation in St. John’s (see paras. 127, 135-136, 181), the Hospital did not establish the Cool School and the Cool School was not the Hospital’s initiative. The Cool School was Dr. Anderson’s initiative and it existed before it became a program of the Hospital. Further, Dr. Anderson controlled the hiring of staff and the admission of students. In St. John’s, the Archdiocese was found to have authority in regard to admissions (see paras. 158, 168-171).

b. In St. John’s, the Archdiocese was found to be the ultimate authority of the Catholic Church and to have exercised a degree of authority over the Christian Brothers: see paras. 142-143. In contrast, for all Cool School-related matters, Dr. Anderson was the ultimate authority, and there is no evidence that the Hospital ever exercised any degree of authority over the Cool School or Dr. Anderson as its director. Everything was subject to Dr. Anderson’s approval.

c. While the Hospital had administrative control over the funds used for the operations of the Cool School, the funds in issue were not funds belonging to, or raised by, the Hospital. Rather, the funds were provided by the Government for the operations of the Cool School. The Hospital was only administering these funds. This is in contrast with the situation in St. John’s where the Archdiocese paid for expenses of the Christian Brothers with its own funds (see para. 130).

d. While there is some limited evidence before me with respect to public perception, such evidence does not go beyond a public perception of a connection between the Cool School and the Hospital. The evidence does not go to the issue of the nature and degree of closeness of the relationship. In contrast, there was evidence in St. John’s that the public perceived a close relationship between the Archdiocese and the Christian Brothers at the orphanage: see paras. 145-146.

e. While the Hospital administered the Cool School’s budget, which gave it some administrative authority, the Hospital was not the source of the funds and it did not have any authority over the Cool School’s programming and activities. The uncontradicted evidence of Mr. Ridley was that the Cool School never sought the Hospital’s permission with respect to its curriculum and activities. The source of the funds, i.e., the Ministry, conducted annual visits of the Cool School, but there is no evidence that representatives of the Hospital were involved. In St. John’s, the Archdiocese was found to have authority over orphanage programming and activity (at para. 155) and the financial arrangements and structure were different (paras. 152-156).

[252] In light of the foregoing, and considering the total relationship between the Hospital and Dr. Anderson, I conclude that the first prong of the test for vicarious liability is not met in this case, i.e., the relationship between Dr. Anderson and the Hospital was not sufficiently close as to make a claim for vicarious liability appropriate. Therefore, Mr. Dunford cannot make out a successful claim for vicarious liability. It is thus unnecessary to consider the second prong of the test.

3. Negligence

[253] To establish liability for negligence, a claimant must show the following: (1) that the defendant owed a duty of care to the claimant to avoid the kind of loss alleged; (2) that the defendant breached that duty by failing to observe the applicable standard of care; (3) that the claimant sustained damages; and (4) that such damages were caused, in fact and in law, by the defendant’s breach. See Saadati v. Moorhead, 2017 SCC 28 at para. 13.

[254] I wish to address briefly the arguments made by Mr. Dunford based on the fact that the Hospital was an owner/occupier of the Cool School. This case does not raise any issues of occupier’s liability or owner’s liability. The incidents of sexual battery did not take place on the Cool School’s premises. Rather, they took place in Mr. Dunford’s apartment. Since the conduct that allegedly caused damages to Mr. Dunford did not take place on the Cool School’s premises, there is no issue of occupier’s liability: see sections 2 and 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. Further, based on the evidence of Messrs. Dunford, Turkstra and Boardman, at the time the incidents of sexual battery occurred in early 1983, the Cool School was no longer located on the Hospital’s grounds and the Hospital did not own the premises occupied by the Cool School. The Hospital had signed a lease for premises located at King and Queen in Hamilton.

[255] While I find that this case does not raise any issue of occupier’s liability, I am prepared to assume for the purpose of my analysis, and without deciding the issue, that the Hospital otherwise owed a duty of care to students at the Cool School, including Mr. Dunford.

[256] In my view, Mr. Dunford has failed to demonstrate the applicable standard of care for the time period in which the alleged negligence occurred, that there was a breach of the applicable standard of care, and that any such breach(es) caused or contributed to the occurrences of sexual battery for which Mr. Dunford seeks damages.

[257] Mr. Dunford argues that the Hospital breached its duty of care by doing nothing. He submits that the “Hospital could have discovered the risk posed by Dr. Anderson, and prevented, stopped, or limited the abuse, had it satisfied the affirmative duty of care it owed to” Mr. Dunford. However, Mr. Dunford does not state what specific steps the Hospital could and should have taken that would have led to the discovery of the risks posed by Dr. Anderson and prevented, stopped or limited the abuse. Such steps would have had to be appropriate for the Hospital to take in light of its role and the nature of its relationship with Dr. Anderson, which was not an employer-employee relationship. I also note that the Cool School was not governed by the legislation generally applicable to schools and school boards. Further, contrary to many cases dealing with sexual abuse of students, the Cool School was not a residential school and a number of students, including Mr. Dunford, were major of age.

[258] Given that Mr. Dunford does not specifically allege what the Hospital should have done, it is not possible to assess whether such steps would have been required by the standard of care that applied, at the relevant time, to the sui generis circumstances of the Cool School and the relationship between Dr. Anderson and the Hospital in relation to the Cool School. In addition, and very importantly, without knowing the specific steps that the Hospital is alleged to have failed to take in breach of the standard of care, it is not possible to assess causation, i.e., to determine whether a breach of the standard of care caused or contributed to the occurrences of sexual battery for which Mr. Dunford seeks damages.

[259] The only specific example given by the Plaintiff is the establishment and implementation of a complaint/reporting policy. The Plaintiff argues that had such a policy been established and implemented, “it likely would have prevented Dr. Anderson from perpetrating the abuse (or at least the second incident).” I find that there is no evidence before me supporting the alleged causal link.[^4] Mr. Dunford did not give evidence that: (a) he sought or considered to make a complaint after any of the two incidents; or (b) he would have made a complaint had there been a complaint/reporting policy in place. Given Mr. Dunford’s evidence, I cannot conclude on the balance of probabilities that a complaint/reporting policy would have prevented, stopped or limited the abuse.

[260] Consequently, I conclude that Mr. Dunford has not established negligence on the part of the Hospital on the balance of probabilities.

4. Damages

[261] Given my conclusion that Mr. Dunford has not established liability on the part of the Hospital, it is unnecessary for me to rule on the issue of damages. However, I will discuss very briefly the approach that I would have taken with respect to damages had I concluded that the Hospital was liable.

[262] In order to make a defendant liable for a loss, the plaintiff must establish that the defendant’s negligence caused the loss in question, i.e., causation must be established. See Clements v. Clements, 2012 SCC 32 at para. 6 (“Clements”).

[263] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the plaintiff would not have suffered the loss. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, the plaintiff’s action against the defendant fails.[^5] See Clements at paras. 8 and 46(1).

[264] A judge applying the “but for” causation test is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused the loss. Scientific proof of causation is not required. See Clements at paras. 9 and 46(1).

[265] The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm. It is sufficient if the defendant’s negligence was a cause of the harm. See Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 19 (“Athey”).

[266] The tortfeasor must take their victim as the tortfeasor finds them and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person. While the defendant is liable for the injuries caused, even if they are extreme, the defendant needs not compensate the plaintiff for any debilitating effects of a pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage. If there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award, consistent with the general rule that the plaintiff must be returned to the position they would have been in, with all of its attendant risks and shortcomings, and not a better position. See Athey at paras. 34-35.

[267] Given that Mr. Dunford had not really earned income prior to the sexual abuse by Dr. Anderson, his claims for both past and future losses of income involve a consideration of hypothetical events. This requires a determination of loss of earning capacity, not the loss of actual earnings. Since a 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. See MacLeod v. Marshall, 2019 ONCA 842 at paras. 17-18.

[268] I disagree with the Plaintiff’s submissions that his injuries are “indivisible”. In my view, this case involves a “crumbling skull” situation where Mr. Dunford had a “pre-existing condition” owing to his difficult childhood and prior traumatic experiences. In such a situation, the defendant need not compensate the plaintiff for any debilitating effects of the pre-existing condition that the plaintiff would have experienced anyway. If there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award. See Athey at paras. 34-35.

[269] In this case, it is clear, in my view, that Mr. Dunford’s pre-assault condition would have affected his future and posed a measurable risk that he would develop his current mental health problems. In fact, his pre-assault condition was already impacting his life before he started at the Cool School, e.g., the fact that he had been unable to complete grade 10. Dr. Hendry gave evidence that Mr. Dunford was a highly traumatized person before he met Dr. Anderson, and that she could not speak as to whether Mr. Dunford would be in the same situation had the incidents with Dr. Anderson not occurred. While I am prepared to accept that Mr. Dunford is in a worse situation now than he would have been had the incidents with Dr. Anderson not occurred, I am not prepared to accept that the Defendant is liable for all of Mr. Dunford’s current issues. In such circumstances, the measure of damages attributable to Dr. Anderson should only reflect the increased aggravation of Mr. Dunford’s condition brought about by Dr. Anderson’s sexual abuse. See M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135 at paras. 35-36, 38-39, 54-49.

[270] It is a well-established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances: see Martin v. Goldfarb, 1998 CanLII 4150 (Ont. C.A.).

[271] In light of the principles set out above, I would have adopted the following approach with respect to the main issues before me regarding damages had I been required to assess damages in this case:

a. Based on the evidence before me, and adopting a pragmatic approach, I would have used 30% as the percentage of damages attributable to the incidents of sexual abuse by Dr. Anderson. I would have applied this percentage to the claims for future treatment costs and loss of income.

b. With respect to income loss, I would have preferred Ms. Greenwald’s methodology to Professor Hyatt’s methodology. In my view, Professor Hyatt’s methodology is inappropriate for a number of reasons, most importantly because his methodology does not allow for a consideration of the actual impact of the sexual abuse on Mr. Dunford. Professor Hyatt used average percentages, and he acknowledged that it was possible that the impact on Mr. Dunford could be different than the average percentages. He also agreed that that the percentages in the studies did not reflect factors such as the nature of the sexual abuse and the number of incidents. Such an approach is inconsistent, among other things, with the thin skull doctrine which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. While Mr. Dunford’s claims for past and future loss of income involve a consideration of hypothetical events, this Court has before it actual evidence regarding the sexual abuse and its impact, and this cannot be ignored in favour of average percentages derived from cases that may be very different from Mr. Dunford’s case.

c. Among the three scenarios proposed by Ms. Greenwald, I would have selected the high school diploma scenario. In light of Mr. Dunford’s pre-existing issues, I am not satisfied that there was a real and substantial possibility that he would have been able to obtain a university bachelor’s degree in humanities had Dr. Anderson not sexually abused him. Among other things, Mr. Dunford did not do well in the traditional school system prior to going to the Cool School. Even at the Cool School, he did not want to work with people he did not like, e.g., Mr. Ridley. Further, he did not follow the regular program at the Cool School: he prepared a paper during phase 4 instead of doing a community placement. By Mr. Dunford’s own admission, the Cool School did not prepare him for the demands imposed by university. He also expressed the view that university was not designed for poor people. Further, Mr. Dunford has tended to get frustrated in different environments because he thought that he was smarter than others, and this affected him negatively both at school and at work. Finally, I note that Dr. Anderson never had any obligation to help Mr. Dunford while he was at university, despite what Mr. Dunford said during his testimony.

d. Both experts added employer-paid benefits to the income loss figures and I agree that it is appropriate to do so. I would adopt the percentage used by Ms. Greenwald, i.e., 11.5%. However, I agree with Professor Hyatt that there is no basis to use a productivity factor of 0.8% per annum when calculating future losses in this case. The use of a productivity factor is not rooted in the evidence in this case. I agree with the comments of Justice Wilson (as she then was) on this issue in Tahir v. Mitoff, 2019 ONSC 7298 at para. 203.

e. Mr. Dunford’s claim for future income losses would need to be reduced to take into account his current health condition (including COPD) and the fact that he has applied for disability benefits.

f. I would have granted general damages in the amount of $175,000.00.

D. CONCLUSION

[272] The action is dismissed.

[273] The parties agreed during the closing submissions that submissions regarding prejudgment interest would be made at the same time as submissions on costs. Given the dismissal of the action, submissions on prejudgment interest are no longer necessary.

[274] If costs cannot be agreed upon, the Defendant shall deliver submissions of not more than four pages (double-spaced), excluding the bill of costs, by June 10, 2024. The Plaintiff shall deliver his responding submissions (with the same page limit) by June 24, 2024. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J.

Released: May 27, 2024

[^1]: It is unclear whether this conversation took place after the first or the second incident. Mr. Dunford’s evidence on this point was different during his examination-in-chief and his cross-examination.

[^2]: With respect to Mr. Dunford, this occurred when he came back to the Cool School for the 1982-1983 school year, after being “discharged” as a “non-materializing candidate” for the 1981-1982 school year.

[^3]: One of the articles states: “That led him [Dr. Anderson] to form the Cool School at Chedoke Hospital for children unable to fit into or function in the educational system.” The other article refers to the fact that the Cool School program is “now part of the regional adolescent services at Chedoke Hospitals.”

[^4]: I also note that there is no evidence before me with respect to complaint/reporting policies adopted by hospitals in the 1980s.

[^5]: The Plaintiff did not argue that the material contribution to risk approach was applicable in this case instead of the “but for” test. In any event, I find that the material contribution to risk approach does not apply in this case. See Clements at para. 46(2).