Jane Doe v. M.N., 2018 NLSC 162

2018 NLSC 162 (CanLII)
IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR

GENERAL DIVISION
Citation: Jane Doe v. M.N., 2018 NLSC 162

Date: July 20, 2018
Docket: 201201G2234
BETWEEN:
JANE DOE, A MINOR, BY HER
GUARDIAN AD LITEM, JOHN DOE
PLAINTIFF
AND:
M.N.
FIRST DEFENDANT
AND:
COMMUNITY ONE ROYAL
CANADIAN ARMY CADET CORPS.
SECOND DEFENDANT
AND:
THE ARMY CADET LEAGUE OF
CANADA
THIRD DEFENDANT
(DISCONTINUED)
AND:
THE DEPARTMENT OF NATIONAL
DEFENCE
FOURTH DEFENDANT
AND:
HER MAJESTY THE QUEEN
(CANADA) AS REPRESENTED BY
THE ATTORNEY GENERAL OF
CANADA
FIFTH DEFENDANT
AND:
M.N.
THIRD PARTY
Page 2
Restriction on Publication: By court order made under subsection 486.4(1) of the

Criminal Code, information that may identify the person described in this
judgment as the complainant or a witness shall not be published in any documents,
broadcasted, or transmitted in any way.

Before: Justice David F. Hurley
Place of Hearing: St. John’s, Newfoundland and Labrador
Summary:
The Plaintiff commenced an action against M.N. in relation to sexual

assaults, which took place over a four-month period. The Plaintiff was 13
years of age when the abuse began. A default judgment was entered against
M.N. The Plaintiff was a member of the local cadet corps. and M.N. was an
instructor. The Plaintiff also sued the local cadet corps., the Department of
National Defence and the Attorney General of Canada for negligence,
breach of fiduciary duty, breach of non-delegable duty and vicarious liability
These claims were dismissed with Costs. Damages were assessed against
M.N.
Appearances:
John W. Lavers &

Will Hiscock Appearing on behalf of the Plaintiff
No Appearance First Defendant / Third Party
Corinne Bedford & Appearing on behalf of the Second, Fourth

Sara Drodge and Fifth Defendant
Page 3
Authorities Cited:
CASES CONSIDERED: Kienapple v. The Queen, [1975] 1 S.C.R. 729; R.

v. M.N., 2012 NLTD(G) 52; Mustapha v. Culligan of Canada Ltd., 2008
SCC 27; Myers v. Peel (County) Board of Education, [1981] 2 S.C.R. 21;
A.B. v. C.D., 2011 BCSC 775; Swales v. Glendinning, (2004), 237 D.L.R.
(4th) 304, 128 A.C.W.S. (3d) 853 (Ont. S.C.); H. (S.G.) v. Gorsline, 2001
ABQB 163, 2001 ABQB 671 (add’l. reasons), aff’d 2004 ABCA 196; G.
(B.M.) v. Nova Scotia (Attorney General), 2007 NSSC 27; Blackwater v.
Plint, [2005] 3 S.C.R. 3; Frame v. Smith, [1987] 2 S.C.R. 99; K.L.B. v.
British Columbia, 2003 SCC 51; Plotnikoff v. Saskatchewan, 2004 SKCA
59; C.A. v. J.W.C. (1998), 113 B.C.A.C. 248; G. (E.D.) v. Hammer, 2003
SCC 52; Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R.
1145; Broome v. Prince Edward Island, 2010 SCC 11; John Doe v. Bennett,
2004 SCC 17; Bazley v. Curry, [1999] 2 S.C.R. 534; Jacobi v. Griffiths,
[1999] 2 S.C.R. 570; B. (E.) v. Order of the Oblates of Mary Immaculate
(British Columbia), 2005 SCC 60; John Doe v. Avalon East School Board,
2004 NLTD 239; John Doe v. O’Dell (2003), 230 D.L.R. (4th) 383, 2003
CarswellOnt 3456 (Sup. Ct.); G. (B.M.) v. Nova Scotia Attorney General,
2007 NSCA 120; T. (K.) v. Vranich, 2011 ONSC 683; M. (K.M.) v. Roman
Catholic Episcopal Corp. of the Diocese of London in Ontario, 2011 ONSC
2143; M. (D.) v. W. (W.), 2013 ONSC 4176; Shaw v. Staples, 2013 ONSC
3290; Rich v. Bromley Estate, 2013 NLCA 24; Hill v. Church of Scientology
of Toronto, [1995] 2 S.C.R. 1130; Norberg v. Wynrib, [1992] 2 S.C.R. 226;
Morrow v. Outerbridge, 2009 BCSC 433
STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Crown

Liability and Proceedings Act, R.S.C. 1985, c. C-50; National Defence Act,
R.S.C. 1985, c. N-5; School’s Act 1987, S.N.L. 1997, c. S-12-2
RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986,

c. 42, Sched. D.; Judgment Interest Act, R.S.N.L. 1990, c. J-2
Page 4
REASONS FOR JUDGMENT
HURLEY, J.:

INTRODUCTION
[1] From November 2009 to late March 2010, M.N.1 carried on a sexual
relationship with the Plaintiff, whose date of birth is January 25, 1996. The
Plaintiff was therefore 13 years old when the relationship commenced and 14 years
old when it terminated. Over this period, the sexual activity occurred by M.N.
arranging to pick up the Plaintiff in his vehicle mainly at her school during her
lunch period.
[2] Following an investigation, M.N. was charged with offences under the
Criminal Code, R.S.C. 1985, c. C-46. On June 6, 2011, he entered a guilty plea to
one count of sexual assault contrary to section 271 of the Criminal Code and one
count of sexual interference contrary to section 251 of the Criminal Code. As both
charges related to the same factual incidents, Crown counsel requested that the
charge of sexual assault be stayed in accordance with the “Kienapple” principle
against multiple convictions (Kienapple v. The Queen, [1975] 1 S.C.R. 729). For
the conviction of sexual interference, M.N. was sentenced to a period of
imprisonment of 21 months to be followed by one-year probation.
[3] The Plaintiff commenced these civil proceedings on May 9, 2012, against
M.N., Community One Royal Canadian Army Cadet Corps.2, the Army Cadet
League of Canada (discontinued May 15, 2017), the Department of National
1
Not the First Defendant’s actual initials
2
The first two words do not reflect the actual name of the Cadet Corps.
Page 5
Defence and Her Majesty the Queen (Canada) as represented by the Attorney
General of Canada.3

[4] Third Party proceedings were brought against M.N. by Notice filed on
January 25, 2013, by the Second Defendant, Fourth Defendant and Fifth
Defendant.
[5] The Attorney General of Canada (“Canada”) filed a defence on behalf of the
following named defendants: Community One Royal Canadian Army Cadet
Corps., the Department of National Defence, and Her Majesty the Queen (Canada)
as represented by the Attorney General of Canada. In the Defence, Canada
maintains that the Attorney General of Canada is the only appropriately named
party by virtue of section 23(1) of the Crown Liability and Proceedings Act, R.S.C.
1985, c. C-50.
[6] M.N. did not file a defence. Summary judgment against him was ordered on
October 3, 2013, with damages to be assessed.
[7] The proceedings before me revolve around issues of negligence, vicarious

liability, fiduciary duty, non-delegable duty and damages.
JANE DOE (PLAINTIFF) BACKGROUND
[8] At the time of trial, the Plaintiff was 20 years old. She had just completed
the third year toward a Bachelor of Science Degree in Psychology. She then
commenced a microbiology course with classes daily for a six-week period with
3
The Second, Fourth and Fifth Defendants at times will be referred to collectively as the “Crown Defendants” and
sometimes by “Canada.” Although, the Plaintiff discontinued the claim against the Second and Fourth Defendants
on October 2, 2013, subsequent filings including pre-trial briefs continued to be filed on behalf of the Second and
Fourth Defendants.
Page 6
two laboratory sessions weekly. For the three university years, she has maintained
a 3.93 G.P.A. out of maximum mark of 4.0. She will commence the fourth year of
her studies in September.

[9] She had graduated from high school with first-class honours with a subject
average in excess of 90% with a special designation in French immersion. She
intends to pursue post-graduate degrees including a Ph.D. and a career in
Psychology.
[10] In addition to impressive academic achievements, the Plaintiff, from an early

age, demonstrated a high degree of excellence in competitive sports. The Court
was told that her father has national and international status as a badminton coach.
With his encouragement and assistance and with her obvious skills, she took part
in badminton competitions on provincial, Atlantic and national levels commencing
when she was eight years old. She also played soccer, softball, volleyball and
basketball at the provincial level. For the past five years the Plaintiff has played
badminton competitively on a North American level.
[11] While at university, the Plaintiff was quite active in securing employment
within the school’s administration. She worked at various times in the library and
the registrar’s office. During one summer, she worked with international student
services as well as assisted an autistic young person through behavior therapeutic
analysis. For a period of time, she served as a student assistant with the
Department of Psychology. During her first year at university, she was a tutor in
the area of languages. As well, for a period of time, she served on the university’s
student union.
[12] Outside the university, she was appointed to the Premier’s Youth Advisory
Committee. While in high school, she served on a committee that advised the
Royal Canadian Mounted Police (RCMP) on youth concerns.
[13] The Plaintiff, however, disclosed an unfortunate episode in her life when she
was 12 years old, approximately six months prior to her involvement with M.N.
Page 7
At that time, she told the Court, she advised an uncle in another part of the
Province that she had been repeatedly raped when she was eight or nine years of
age. The suggestion that she had been raped came from an online “counsellor”
named Jack with a user name of “Therapy 101” or of a similar name. The Plaintiff
told the “counsellor” that she was under stress, experiencing conflicts with her

family and having nightmares. The counsellor told her that these symptoms were
consistent with her having been raped and abused. The Plaintiff says she
eventually accepted the opinion provided by the online counsellor. When the
uncle’s wife disclosed the matter to her parents in August 2009, the Plaintiff
convinced them it was true. Medical professionals, the police, and counsellor
became involved; she did not disclose the basis of the conclusion of being raped.
At trial, she admitted that the rapes did not take place.
[14] During this crisis, the Plaintiff continued to excel academically and
participated extensively in sports.
[15] Although the Plaintiff testified that these rapes did not occur, she has failed
to tell her parents the truth. As well, just prior to her going to the police relating to
M.N. she told one of her best friends that the rapes actually happened. During her
relationship with M.N., she told him that she had been repeatedly raped when she
was eight or nine years old.
The Plaintiff’s Relationship with M.N.
[16] M.N. moved from Community 1 to Community 2 on January 1, 2009 and

resided on the same street as did the Plaintiff and her family. As the residences
were in very close proximity, interactions between the two families developed. As
well, M.N.’s son who was one year younger than the Plaintiff attended the same
school prior to the move. In his statement to the police, M.N. stated that he was
earlier introduced to the Plaintiff by his son. The witnesses and counsel did not
refer to specific dates. In the criminal trial dealing with sentencing, the Agreed
Statement of Facts indicated that the Plaintiff and M.N. met when she came to
M.N.’s home to visit his son.
Page 8
[17] In her second statement to the RCMP on May 26, 2010, the Plaintiff when
asked about visiting M.N.’s household stated, “Well, I used to hang out with his
kid … or his son … quite a bit as I was down there a lot anyway.” Similarly, in
her statement of April 27, 2010, on the issue, the Plaintiff advised Corporal
Anderson “So I’d see him a lot there. And besides that me and [M.N.’s son] used

to hang out all the time so I’ve been down to his house probably more times than I
can count.” M.N. in his police statement said that the Plaintiff would have come to
his home to play video games and other activities with his son and daughter. This
is consistent with what she told Dr. Jeff Cunningham, as recounted in his report of
February 13, 2015. Visiting the residence of M.N.’s son and meeting M.N. appears
to have originated when M.N.’s son was a “new neighbor,” which suggests a time
in early 2009.
[18] Sometime after M.N. moved to Community 2, he would drive the Plaintiff to
and from school with his son and daughter. This was confirmed by both the
Plaintiff and M.N. at least on two occasions in their police statements. M.N. would
leave his car unlocked overnight for the convenience of the Plaintiff in the
morning.
[19] Also at this time, the Plaintiff and her father were involved with coaching
and providing badminton lessons to M.N.’s son and M.N.’s daughter. While her
father was the main instructor, the Plaintiff would attend to assist. M.N. would
take his children to these weekly lessons and would remain to watch and discuss
their progress.
[20] While the Plaintiff generally indicated at trial that she first met M.N. in mid-
October 2009 at a cadet meeting, I find it more probable that she met and knew
him previously as other evidence indicates. I have interpreted her evidence at trial
as attempting to minimize her involvement with M.N. outside the cadet program.
M.N.’s Involvement with Cadets

Page 9
[21] During an approximate four-month period of November 2009 to late March

2010, the time period that the sexual assaults occurred, M.N. was a part-time
employee of the Department of National Defence as a Cadet Instructor Cadre
(CIC). He had a full-time position with a mental health agency funded by the
Provincial Government.

[22] In 2008 M.N., whose son was in the Army Cadets, made application to
become a civilian volunteer in the Community One Royal Canadian Army Cadet
Corps. His application was screened by the Army Cadet League of Canada, a
civilian non-profit organization that assists the Department of National Defence in
various objectives including the recruitment of instructors, civilian volunteers and
cadets.
[23] The screening process for a civilian volunteer, which concluded in October
2008 consisted of an application from M.N., three references, Court Records
Check, Police Records Check (PRC) and Vulnerable Sector Screening (VSS). The
VSS permits the disclosure of conviction records for sexual offences for which a
pardon has been granted. All checks were clear and the references provided
excellent recommendations according to the Commanding Officer at the
Community One Royal Canadian Army Cadet Corps.
[24] Subsequently, M.N. applied to become a CIC Officer. For this position, he
was screened this time by the Canadian Forces with the Department of National
Defence. M.N. was again subjected to a screening process including the various
criminal records checks and a medical assessment. He was also required to
provide copies of his birth certificate, social insurance card, marriage certificate
and education records, as well as letters of reference attesting to his character.
M.N. was also required to read and confirm his compliance with the Canadian
Forces Policy on Discrimination and Harassment and the Canadian Forces Drug
Control Program Policy. He was also interviewed in person by the Canadian
Forces.
Page 10
[25] On March 23, 2009, M.N.’s status changed from a volunteer to that of
member of the Canadian Forces, having been accepted for enrolment in the CIC
program.

[26] M.N. was suspended from his position as a CIC Officer upon being charged
with sexual interference and sexual assault of the Plaintiff, an army cadet who was
13 to 14 years old at the time of these offences. M.N. was formally released as a
member of the Canadian Armed Forces on April 24, 2012, following his
conviction for sexual interference.
The Plaintiff’s Involvement with Cadets
[27] The Plaintiff was a member of the Community One Royal Canadian Air
Cadets from September 2008 to October 26, 2009, at which time she transferred to
the Community One Royal Canadian Army Cadet Corps. She left the army cadets
in April 2010.
The Plaintiff’s Sexual Involvement with M.N.
[28] The details of the relationship between the Plaintiff and M.N. are generally
set forth in R. v. M.N., 2012 NLTD(G) 52, by way of an Agreed Statement of Facts
which states as follows at paragraph 4:
4. The Agreed Statement of Facts entered in this matter reads as follows:
In the Fall of 2009 the complainant was 14 [should be 13] years old and
was involved in the [Community 1] area Air Cadets, as well as Badminton
at her school. At one point in the Fall her Air Cadet Squadron was
involved in a shooting exercise which was supervised by Army Cadet
officers, the accused, [M.N.], being one of them. The Accused and the
complainant first met when the complainant came to the accused's house
to visit their son. After this shooting exercise, and because both badminton
and Air Cadets conflicted, [the complainant] left the Air Cadet Squadron
Page 11
and joined the Army Cadet Squadron. This happened, she believes, in
either Late November or early December of 2009.
The Accused and the complainant lived on the same street, and the
complainant was friends with the accused's son, who was in the same

Army Cadet Corps. Because of this, the complainant requested rides to
and from Cadets with the accused. During these trips, the accused and the
complainant began to talk frequently and started to get close to one
another. The complainant frequently talked to the accused about personal
problems. The accused also discussed his own mental health issues with
the complainant as he was suffering from depression.
Shortly before 2010, in December of 2009, the accused developed a

physical relationship with the complainant. The complainant indicates that
the accused initiated the physical relationship, but that it was not forced
upon her, and she was compliant. Over the next four months both the
accused and the complainant frequently contacted each other via text
message, MSN, and cell phone to arrange personal meetings. This
occurred with a frequency of about two to three times a week. The
complainant indicates that at least one of these two or three times would
involve sexual intercourse or other sexual contact. Most often, the accused
would arrange to pick the complainant up at lunch time from her school,
[Community 1] Middle School, and the two would spend the lunch break
together. Frequently during these lunch breaks the two would engage in
sexual intercourse in the accused's vehicle, at various remote locations in
the Stephenville area.
The accused also engaged in sexual intercourse with the complainant at

his own home on one occasion. The accused also engaged the complainant
in oral sex, both him performing it on her and her performing it on him.
The complainant reports that this occurred 10 to 20, and a dozen times,
respectively.
Over the course of roughly a 4 month period (from December 2009 to

Easter, 2010) the accused and the complainant exchanged nearly 600 e-
mail and text messages that indicate throughout that the two were in a
mutual relationship. Several of the messages contain explicit sexual
comments and remarks, both to and from the accused and to and from the
complainant, and several were sent from the accused to the complainant
(and vice versa) to arrange meetings for sexual intercourse and other
sexual contact.
The complainant could not quantify the number of occurrences of sexual

contact, but stated that she would meet the accused two or three times per
week for a period of four months, and that on at least one occasion
Page 12
throughout the week the two would have sexual intercourse and/or other
sexual contact.
Over the course of the relevant four months the accused was 33 years old.

The sexual contact ended shortly following Easter 2010 and upon the
return of the complainant from the Newfoundland Games. Upon return she
ceased contact with the accused and quit Army Cadet Corps. The
occurrences came to the attention of police in April 2010 when the
complainant reported, via written letter, to her father her reasons for
quitting Army Cadets and revealed that she had been in a sexual
relationship with the accused. On the following day the complainant's
father brought her to the RCMP to report the incident.
[The complainant] gave a statement to police outlining the details of the

incidents. Police investigation revealed the majority of e-mails and text
messages sent between the accused and the complainant.
[29] Although I have found that she had known M.N. from their neighborhood,
she first became involved with him in cadet activities in mid-October 2009 when
he filled in on one occasion as a shooting instructor in the air cadets. As her father
was unable to pick her up after the session, M.N. offered to drive her home. While
the evidence is somewhat vague, I assume that her father would not have dropped
her off in the neighbouring community without arranging for her transportation
home.
[30] On the drive home she advised M.N. that the scheduled evening for air
cadets conflicted with badminton. As did other individuals, he advised her to
transfer to army cadets where he was a training officer. She said she liked M.N.
and found him to be funny. Within approximately two weeks, on October 26,
2009, she joined the army cadets. She said she had no contact with M.N. during
this “transitional” period. As the army cadets met on the same time as did a sports
event attended by the Plaintiff’s father, he agreed that M.N. would drive the
Plaintiff home. The army cadet corps. had a scheduled meeting in excess of two
hours duration each week with an optional training session lasting approximately
one hour on another evening.
Page 13
[31] Commencing October 26, 2009, the Plaintiff drove to and from the armories
with M.N. and his son. The Plaintiff gave the impression that the relationship with
M.N. was formed during the drives to and from the cadet meetings on and after
October 26, 2009. As M.N.’s son, according to Captain Brown, had a very high
attendance record and would be present in his father’s vehicle, and considering that

the sexual relationship developed fairly quickly, it is more probable than not the
relationship was fostered by numerous telephone calls, texts and emails
commencing November 1, 2009, through which arrangements were made to pick
up the Plaintiff at various locations and times, but mainly at school during lunch
time. During the four-month relationship, approximately a total of 600 texts,
emails and phone calls were exchanged.
[32] The Plaintiff and M.N. engaged in sexual intercourse once at his residence
and on one occasion at his office. While she was vague, she said that sexual
activity could have taken place after leaving the cadet classes, but she could not
recall any particular incidents. I find it unlikely that sexual intercourse took place
while travelling from army cadet meetings to her home. Had the Plaintiff arrived
late from cadets, it would have aroused suspicion, which was being avoided by
both M.N. and the Plaintiff. As indicated, M.N.’s son who was in army cadets,
drove with his father and according to the Commanding Officer, he had an
extremely high attendance record.
[33] During the investigation and prior to the commencement of litigation, the
Plaintiff did not report any sexual incidents at army cadet meetings. At trial and in
the Discovery Proceedings, she testified that the following two incidents occurred
at army cadets:
a) During a cadet meeting, [M.N.] and the Plaintiff went into the
hallway for supplies and when alone [M.N.] kissed and touched
the Plaintiff in the area of her breasts and behind.
b) At the overnight camp, the Plaintiff went to the officer’s cabins
for headache pills. [M.N.] was there and kissed her.
Page 14
[34] The Plaintiff informed M.N. she wanted to terminate the relationship in early
April 2010. She concluded that it was inappropriate and wrong. When M.N. was
told, he became upset and displayed immature behavior. He texted her
continuously when she refused to respond. He frightened the Plaintiff by coming
to her house. She then disclosed the relationship to her father, who notified the

Police.
LIABILITY
[35] The Plaintiff claims that the Crown Defendants are liable to her for
negligence, breach of fiduciary duty and breach of non-delegable duty. The
Plaintiff also maintains that the Crown Defendants are vicariously liable for the
conduct of M.N.
NEGLIGENCE
[36] The Plaintiff claims that the Crown Defendants are directly liable to her for
negligence. Therefore, the Plaintiff must establish the existence of a duty of care, a
breach of that duty and resulting damages (Mustapha v. Culligan of Canada Ltd.,
2008 SCC 27 at para. 3). Absent any of these elements, the claim by the Plaintiff
fails.
[37] At trial, the Crown Defendants admitted that they owed a duty of care to the
Plaintiff. Arguably similar to the present case, the standard of care to be exercised
by school authorities in providing for the supervision and protection of children for
whom they are responsible is one of a “careful and prudent parent” (Myers v. Peel
(County) Board of Education, [1981] 2 S.C.R. 21; A.B. v. C.D., 2011 BCSC 775 at
para. 111).
[38] The formation of cadet organizations is highly regulated. The National

Defence Act, R.S.C. 1985, c. N-5 authorizes the Minister to establish cadet
organizations under the control of the Canadian Forces. Details relating to the
Page 15
administration of these organizations are set out in a comprehensive publication

called the Queen’s Regulations for the Canadian Cadet Organizations (the “(QR)
(Cadets)”) issued on the authority of the Chief of Defence Staff.

[39] Further, the National Defence Headquarters has the authority to issue Cadet
Administration and Training Orders (CATO) to supplement QR (Cadets) and other
publications and orders.
[40] Of relevance in these proceedings is CATO 23-04 Canadian Cadet

Organizations Adult Screening Policy, which establishes the policies and
procedures to be applied to meet the screening requirements for adults working for
the Canadian Adult Organizations (CAO). In the opening sections of these Orders
the Department of National Defence confirms that as the Canadian Forces are
involved in the training and development of youth as cadets, the importance of
appropriate and thorough screening of adults entrusted to their care cannot be
overstated. The evidence at trial established that the Crown Defendants take the
screening requirements of adults very seriously.
[41] John Eckert gave evidence on behalf of the Crown Defendants. Mr. Eckert,
who was a cadet in Community 1 from age 12 to 18, recently became a CIC
Officer with the Canadian Cadet Organization (CCO). Previously in 2015 he
applied and was accepted as a Civilian Volunteer (CV) and would have been
subject to the screening process set out in CATO 23-07 Civilian Volunteers in
Support of Authorized Cadet Activities. Afterward, the application and process for
a CIC Officer was more extensive than that for a CV and involved a medical
examination relating to physical and mental health as well as an interview by the
Canadian Forces. The screening process for Mr. Eckert took eight months.
[42] Also of relevance is CATO 13-12 Supervision of Cadets, which sets out in
detail with clarification the policy regarding the level of supervision of cadets for
various types of activities including mixed gender activities. CVs and senior
cadets are given a reduced role in the area. For example, adult volunteers and
senior cadets cannot act as the sole supervisor of cadet activities. As well, there is
Page 16
a higher level of supervision in terms of the number of appropriate supervisors for

overnight activities than it is for day activities.

[43] Captain Brown, the Commanding Officer with the army cadets testified that
part of the cadet training involves the delivery of an introductory lecture titled
“Positive Social Relations for Youth Training.” This particular program came into
effect on June 1, 2009, and replaced a similar one. The lecture and discussions are
of two hours and 45 minutes duration and are presented by a CIC Officer trained
and qualified for that purpose. This part of the program is delivered in the first two
months of the cadet year, which ordinarily commences in September. The lecture
and instructions are also mandatory at all summer camps or Cadet Training Centres
at the commencement of activities.
[44] In addition to dealing with issues of good citizenship and leadership, the
instructor reviews matters relating to harassment, criminal offences, and child
abuse and how and where help can be found.
[45] On the evidence, which I accept, the Plaintiff would have participated in this
program at least twice and possibly three times prior to commencing a relationship
with M.N.; this would be in her first year in 2008 with air cadets, at the summer
camp in Nova Scotia in 2009, and during the two months she participated in the air
cadet training.
[46] In spite of the unfortunate outcome, Captain Brown confirmed that the
officers of the army cadet corps. and the officials with the Department of National
Defence complied with the rules with respect to the screening of M.N. and the
other supervisors of the Plaintiff. No evidence was presented to indicate that the
screening process failed to disclose previous inappropriate conduct or concern.
While the Plaintiff has taken issue with the supervision of M.N., it is not alleged
that the officers at the army cadet corps. failed to comply with the requirements set
out by the Department of National Defence or with the standard of care exercised
by a careful and prudent parent.
Page 17
[47] However, it is recognized that the Court must consider this matter in its full
context to decide if there was a breach of duty of care to the Plaintiff. On this
issue, the parties have presented a number of authorities which I will now review.

[48] On the allegation of negligence, the Plaintiff referred to Swales v.
Glendinning, (2004), 237 D.L.R. (4th) 304, 128 A.C.W.S. (3d) 853 (Ont. S.C.) in
which the court found liability against the Diocese in that it failed to appreciate and
actually ignored Glendinning’s unusual conduct of being alone with young
children including at his apartment in the seminary and at overnight camping trips.
The judge found that the circumstances presented in that case provided the
potential for improper behavior and it should have been obvious to Glendinning’s
fellow residents at the seminary. A duty of care arose, which the Diocese failed to
discharge.
[49] In the present case, there was no inappropriate or even suspicious conduct by
M.N. observed by the officers at the army cadet corps. that would call for further
investigation and enhanced observation.
[50] The Plaintiff’s parents consented without reservation to his taking her to
school and to cadets. In fact, the Plaintiff told the police that M.N. had become her
father’s best friend. As well, both the Plaintiff and M.N. took extraordinary
measures to conceal the relationship. She only disclosed this to her best friend and
then to her father upon terminating the relationship.
[51] The Crown Defendants maintain that the case of A.B. v. C.D. is similar to the
case at bar, where the plaintiff was sexually assaulted by her former high school
teacher. The plaintiff commenced an action against the teacher and the school
board claiming that the board was negligent and vicariously liable for the action of
the teacher. There were seven incidents of sexual contact, which took place on
school premises during school time. There was an acknowledgement that the
plaintiff acquiesced to the sexual touching. The court allowed the claim as against
the teacher but dismissed the claim of negligence against the school board.
Page 18
[52] In finding that the school board was not aware of any suspicious conduct
because the student and teacher took effective steps to keep the relationship secret,
this meant the school board could not have prevented the sexual activity.

[53] The Crown Defendants refer to a similar decision, H. (S.G.) v. Gorsline,
2001 ABQB 163, 2001 ABQB 671 (add’l. reasons), aff’d 2004 ABCA 196, in
which a student was sexually abused by a teacher. The plaintiff asserted that the
board ought to have known about the teacher’s behavior and should have taken
appropriate measures. The court found that the teacher and student effectively
concealed their relationship, and that the teacher’s colleagues and parents did not
suspect that anything untoward was happening. In dismissing the claim against the
board, the court found that the board complied with exercising the standard of care
of a careful and prudent parent.
[54] As well, the plaintiff maintained that the board was negligent in its failure to
properly screen and assess applicant teachers. In dismissing this aspect of the
claim, the court found in Gorsline at para. 106 that “… screening teacher
applications in a different way would not have prevented the hiring of Gorsline
because his record was clear.”
[55] In G. (B.M.) v. Nova Scotia (Attorney General), 2007 NSSC 27, the plaintiff
commenced a claim in negligence against the Province relating to sexual assaults
by a probation officer on a young offender. In dismissing this aspect of the claim,
the court found that the abuse was not reasonably foreseeable, and concluded at
paragraph 105:
105 In short, there is no evidence from which one might infer that the
Defendant could have reasonably foreseen that Lalo would abuse the children on
his caseload. I am satisfied that the claim of negligence is not supported by the
evidence.
(The Nova Scotia Court of Appeal affirmed the decision dismissing

the Plaintiff’s claim in negligence (2007 NSCA 120 at para. 54))
Page 19
[56] In Blackwater v. Plint, 2005 SCC 58 it was argued that Canada and the
United Church of Canada, the operators of residential schools, were negligent in
employing employees they knew or ought to have known to be pedophiles and in
failing to exercise reasonable supervision and direction over their employees. The
Supreme Court of Canada agreed that Canada and the United Church owed a duty

of care to the victims. However, the court agreed with the trial judge that the
sexual assaults were not reasonably foreseeable in the circumstances and dismissed
the claim of negligence.
[57] In conclusion, the evidence in these proceedings confirmed that the Crown
Defendants were keenly aware of its obligation to carefully screen adults involved
with the operation of the cadet corps. Strict procedures were in place and were
carried out. In retrospect, the vetting of M.N. did not disclose any concern, as it
now appears his background was clear.
[58] As well, the supervisors of M.N. cannot be faulted, as both M.N. and the
Plaintiff took effective steps to conceal the nature of their relationship from
everybody, including arranging meetings outside the place and times of the cadet
activities.
[59] The claim of negligence is therefore dismissed.
BREACH OF FIDUCIARY DUTY
[60] The Plaintiff submits that the relationship between the Crown Defendants
and the cadets is a fiduciary one and that Crown Defendants’ failure to adequately
supervise the army cadet corps. and M.N. constitutes a breach of this duty.
[61] While the Crown Defendants concede that a duty of care was owed to the
Plaintiff as the term is defined in negligence law, they contend their relationship
with the Plaintiff was not fiduciary in nature. In determining whether this
relationship exists, reference may be made to Frame v. Smith, [1987] 2 S.C.R. 99
Page 20
wherein the dissenting decision of Wilson, J. (later approved in Lac Minerals Ltd.
v. International Corona Resources Ltd., [1989] 2 S.C.R. 574), the following
criteria were set forth as the necessary factors at paragraph 60:

60 Relationships in which a fiduciary obligation have been imposed seem to
possess three general characteristics:
(1) The fiduciary has scope for the exercise of some discretion or power.
(2) The fiduciary can unilaterally exercise that power or discretion so as
to affect the beneficiary's legal or practical interests.
(3) The beneficiary is peculiarly vulnerable to or at the mercy of the
fiduciary holding the discretion or power.
[62] The Crown Defendants maintain that in this case none of the three factors
are found based upon the evidence.
[63] An aspect of the duty of a fiduciary is not to take advantage of a trust

relationship for the fiduciary’s own benefit. In K.L.B. v. British Columbia, 2003
SCC 51, the Supreme Court of Canada referred to this as an essential element of
this relationship, and the fiduciary will be liable for a breach of that duty (at para.
49).
[64] On this issue, the court confirmed that the duty is to act loyally and not to
put one’s interest ahead of the beneficiaries in a manner that abuses the trust (at
para. 47).
[65] In Plotnikoff v. Saskatchewan, 2004 SKCA 59, the Saskatchewan Court of

Appeal reviewed a trial decision wherein the appellants, two former foster
children, had commenced a claim against the Province for breach of fiduciary duty
relating to abuse by the foster parents. The trial judge dismissed this aspect of the
claim as the pleadings did not lay the foundation for a breach of fiduciary duty. In
confirming the decision of the trial judge, the court stated at paragraph 61 (See also
C.A. v. J.W.C. (1998), 113 B.C.A.C. 248):
Page 21
61 Applying these principles to the issues in these appeals, we find that the
pleadings do not lay a foundation for breach of fiduciary duty. There is no
allegation in the appellants' pleadings that the Government acted in its own self-
interest and against the interests of either of the appellants. Although there is a
passing reference to breach of fiduciary duty, no material facts are pleaded in

support of any such claims.
[66] In the present case, not only did the pleadings not address the issue of self-
interest, but more importantly, the evidence did not support this criteria.
[67] Breach of fiduciary duty requires fault and it is not result-based liability. In
G. (E.D.) v. Hammer, 2003 SCC 52, a young student was repeatedly sexually
assaulted by a janitor at her school. She commenced an action against both the
janitor and the school board on the basis of vicarious liability, breach of fiduciary
duty and non-delegable duty. In dismissing the claim for fiduciary duty, the court
stated at paragraph 25 to 27:
25 The fact that a breach of fiduciary duty requires fault is one of the features
that distinguishes this type of claim both from claims based upon statutory non-
delegable duties of the sort at issue in Lewis, supra, and from claims based upon
vicarious liability. The latter two types of claim are no-fault claims. Breaches of
fiduciary duty, however, require fault. As the trial judge, Vickers J., noted at para.
46:
No fault obligations are imposed in the context of a claim for vicarious
liability. Breach of fiduciary duty is not a no fault claim.
26 In the case at bar, the only fault to which the appellant was able to point
was the fault of the school janitor. The appellant was unable to identify any action
or omission on the part of the School Board that might itself amount to a breach
of a fiduciary duty. The fiduciary duty in this case lies upon the Board. The object
for analysis, then, is not the conduct of the janitor but the conduct of the fiduciary,
the Board. The trial judge specifically found that "no person employed by the
Board had any reason to suspect he [Mr. Hammer] was engaged or might be
likely to engage in any inappropriate behaviour with the children" (para. 17).
27 I conclude that none of the conduct alleged against the School Board
involves the type of wrong traditionally associated with breach of fiduciary duty
and that the appellant's claim for breach of fiduciary duty fails.
Page 22
[68] I have previously found that the Plaintiff has failed to establish that the
Crown Defendants were negligent or at fault.

[69] The Plaintiff’s claim based on a breach of fiduciary duty is dismissed.
NON-DELEGABLE DUTY
[70] In the pleadings and argument, the Plaintiff alleges that the duty of care
owed to her was non-delegable.
[71] The Crown Defendants contend that the principle of non-delegable duty is
inapplicable to this case but again acknowledge that they owed the Plaintiff a duty
of care as that term is understood in negligence law. In the pleadings and
submissions in Court, the Crown Defendants have not alleged that they delegated
that duty to anyone. Correspondingly, the Plaintiff has not alleged to whom the
Crown Defendants have delegated the selection and supervision of M.N.
[72] The Plaintiff refers to section 46 of the National Defence Act, which
authorizes the Minister to establish a cadet corps. such as Community One Royal
Canadian Army Cadet Corps., the Second Defendant. The section does not specify
any statutory duty for the care and supervision of members of the cadet program.
[73] It is not in dispute that in certain circumstances some obligations and duties
are “non-delegable” in the sense that an employer cannot avoid liability by
delegating the responsibility to an independent contractor or third party.
According to the Supreme Court of Canada in Blackwater, the consideration or
inquiry into whether a non-delegable duty exists “… begins with the words of the
statute …” (at para. 48).
Page 23
[74] In Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145,
the Supreme Court of Canada decided that where the applicable statutes created a
duty on the Province to maintain the highway, that duty cannot be delegated to an
independent contractor, and that the Province remains liable for any negligence of
the independent contractor and its employees. The principle does not create strict

liability as it requires someone to be negligent.
[75] The safety of children in the context of a non-delegable duty was

specifically reviewed by the Supreme Court of Canada in Hammer, where it was
found that the relevant statute did not “clearly place” the school board under a
broad statutory non-delegable duty to establish liability for several sexual assaults
on a student by a janitor. While the School’s Act 1987, S.N.L. 1997, c. S-12-2
provided for specific duties pertaining to student health and safety, the legislation
did not permit the inference that school boards are generally and ultimately
responsible for the health and safety of school children on school premises to
render them liable for abuse by school employees (See also, K.L.B.; Blackwater;
and Broome v. Prince Edward Island, 2010 SCC 11).
[76] Similarly in any event I have concluded that no non-delegable statutory duty
can be inferred from the language of the statute. Further, I have previously found
there was no negligence or breach of fiduciary as against the Crown Defendants.
The only wrongdoings were the intentional criminal acts committed by M.N.
[77] The claim by the Plaintiff for a breach of non-delegable duty is dismissed.
VICARIOUS LIABILITY
[78] Vicarious liability was defined by Chief Justice McLachlin in John Doe v.
Bennett, 2004 SCC 17 at paragraph 17 in these terms:
17 ... The doctrine of vicarious liability imputes liability to the employer or

principal of a tortfeasor, not on the basis of the fault of the employer or principal,
but on the ground that as the person responsible for the activity or enterprise in
Page 24
question, the employer or principal should be held responsible for loss to third
parties that result from the activity or enterprise.
[79] The issue of vicarious liability for sexual assaults carried out by employees

of the employer or principal has been reviewed fairly extensively by the Supreme
Court of Canada. The starting point for present-day analysis related to these
proceedings are two decisions released concurrently: Bazley v. Curry, [1999] 2
S.C.R. 534 and Jacobi v. Griffiths, [1999] 2 S.C.R. 570.
[80] In Bazley, Jacobi and subsequent decisions the Supreme Court of Canada
stated that analysis for vicarious liability is governed by the Salmond test, which
provides that employers and principals are vicariously liable for (a) employee acts
authorized by the employer or principal; or (b) unauthorized acts so connected with
authorized acts that “they may be regarded as modes (albeit improper modes) of
doing an authorized act.” (Bazley at para. 10; see also Jacobi at para. 55;
Blackwater at para. 20 - 21; Bennett, at para. 19 - 20)
[81] The test with its inherent problems is more fully set out in Bazley at
paragraphs 10 and 11:
10 Both parties agree that the answer to this question is governed by the
"Salmond" test, which posits that employers are vicariously liable for (1)
employee acts authorized by the employer; or (2) unauthorized acts so connected
with authorized acts that they may be regarded as modes (albeit improper modes)
of doing an authorized act. Both parties also agree that we are here concerned
with the second branch of the test. They diverge, however, on what the second
branch of the test means. The Foundation says that its employee's sexual assaults
of B. were not "modes" of doing an authorized act. B., on the other hand, submits
that the assaults were a mode of performing authorized tasks, and that courts have
often found employers vicariously liable for intentional wrongs of employees
comparable to sexual assault.
11 The problem is that it is often difficult to distinguish between an

unauthorized "mode" of performing an authorized act that attracts liability, and an
entirely independent "act" that does not. Unfortunately, the test provides no
criterion on which to make this distinction. In many cases, like the present one, it
is possible to characterize the tortious act either as a mode of doing an authorized
act (as the respondent would have us do), or as an independent act altogether (as
Page 25
the appellants would suggest). In such cases, how is the judge to decide between
the two alternatives?
[82] M.N.’s sexual relations with the Plaintiff were not authorized by any of the

Crown Defendants. The issue therefore, is whether M.N.’s unauthorized acts were
so connected with the authorized acts that they may be regarded as improper
modes of doing an authorized act.
[83] In Bazley, the Supreme Court of Canada established a two-step process for
determining when an unauthorized act is so connected with the authorized acts that
they may be regarded as improper modes of doing an authorized act as stated in
paragraph 15:
15 This review suggests that the second branch of the Salmond test may
usefully be approached in two steps. First, a court should determine whether there
are precedents which unambiguously determine on which side of the line between
vicarious liability and no liability the case falls. If prior cases do not clearly
suggest a solution, the next step is to determine whether vicarious liability should
be imposed in light of the broader policy rationales behind strict liability. This
Court has an additional duty: to provide guidance for lower tribunals.
Accordingly, I will try to proceed from these first two steps to articulate a rule
consistent with both the existing cases and the policy reasons for vicarious
liability.
[84] With respect to the first step, the parties did not allege that there were
precedents which “unambiguously determine” whether the case should attract
vicarious liability. They did, however, refer to authorities, which they argue were
helpful to their respective positions.
[85] As precedent does not resolve the issue of vicarious liability in the present
case, the consideration that now arises is whether the wrongful act is sufficiently
related to conduct authorized by the employer to justify the imposition of vicarious
liability. A review of some additional aspects of the factual background is helpful
in this determination.
Page 26
[86] In determining whether an employer or principal is vicariously liable for an

employee’s unauthorized intentional acts and conduct, courts shall be guided by
the following factors (Bazley at para. 41):

(i) The opportunity that the enterprise afforded the employee to
abuse his or her power;
(ii) The extent to which the wrongful act may have furthered the
employee’s aims (and hence be more likely to have been
committed by the employee);
(iii) The extent to which the wrongful act was related to friction,
confrontation or intimacy inherent in the employer’s enterprise;
(iv) The extent of power conferred on the employee in relation to the
victim;
(v) The vulnerability of potential victims to wrongful exercise of the

employee’s power.
[87] Bazley dealt with sexual abuse by an employee in a residential care facility
for the treatment for emotionally troubled children. The court found that vicarious
liability should be imposed on the employer and operator, the Childrens’
Foundation. In the companion case, Jacobi, sexual abuse was perpetrated by an
employee of the operator of the Boys’ and Girls’ Club, a non-profit entity
providing children with recreational activities that were carried on after school and
on Saturdays. The court found that vicarious liability should not be imposed.
[88] In the present case, the Plaintiff has failed to prove that the enterprise of the
Crown Defendants created and fostered the risk resulting in the Plaintiff being
sexually abused. M.N. was a training officer with the army cadet corps. His role
was to establish and plan for the delivery of certain subjects and topics, which
would involve arranging for appropriate instructors. He would also be called upon
to assist in some areas such as marksmanship, drills and similar matters.
Page 27
[89] The Plaintiff refers to her getting rides to and from cadets as a relevant
factor in the employer’s creation of the risk of M.N.’s wrongful conduct. This
arose as the result of an arrangement between M.N. and the Plaintiff’s parents as a
matter of convenience as the families lived on the same street. For much of the
same reason, the Plaintiff’s parents consented to M.N. driving her to and from

school each day. When the Commanding Officer was advised by M.N. that he was
driving the Plaintiff from cadets, he advised M.N. to obtain the consent of her
parents as this was outside the role of an officer or instructor.
[90] As was previously stated, the sexual abuse was not related to intimacy
inherent in the cadet program. The aim of the cadet program is clearly set out in
publications by the Department of National Defence, which states:
CADET PROGRAM (CP)
The aim of the CP is to develop in youth the attributes of good character and
leadership, promote physical fitness, and stimulate the interest of youth in the sea,
land and air activities of the Canadian Forces (CF).
[91] The Plaintiff has failed to establish that the Crown Defendants conferred
meaningful and significant power over her. The cadet corps. was a voluntary club
or association where the cadets were absolutely free to discontinue their attendance
and involvement, as did the Plaintiff in April 2010. As well, similar to the
members of the Boys’ and Girls’ Club in Jacobi, they went home to their parents
after the meetings concluded.
[92] While the issue of inherent vulnerability of children will always arise in
instances of their abuse, I have found that the Crown Defendants took steps that a
reasonable employer would have done in terms of recruiting and supervising M.N.
However, in this case, the vulnerability did not provide the “strong link” between
the operations of the cadet organization and the sexual assaults committed by M.N.
as employee (Jacobi at para. 86). The present situation is not similar to the
situation of emotionally troubled children in a residential facility as reviewed in
Bazley.
Page 28
[93] The Plaintiff did not exhibit any particular vulnerability. In her letter to her
father and in her statements to the police, she demonstrated self-confidence and her
self-esteem intact. When she was questioned by the police as to her not being
detected leaving and returning to school, she stated, “People are kind of stupid
sometimes.” On another occasion, she told the interviewing officer that her high

academic standing gave her preferential treatment such as using the “teachers’ and
staff doors” to exit the school quickly during lunch time, unnoticed by the students
and teachers.
[94] In Gorsline, the court applied the principles set out in Bazley and Jacobi and
declined to impose vicarious liability on a school board for sexual assaults
perpetrated by a teacher as there was no “significant connection” between the
duties and his wrongdoing. While it was recognized that the teacher’s work gave
him opportunity to abuse his authority, his duties did not require intimate contact
similar to Bazley. In the present case, it was not part of M.N.’s duties to transport a
student to and from cadets. Similar to M.N. providing rides to the Plaintiff
travelling to and from school each day, transporting her to and from cadets one or
two times per week was an arrangement made with the agreement of her parents.
Similarly, as the plaintiff in Gorsline lived with his parents, “the compelling
parent-child bond” was not displaced (at para. 76).
[95] The Supreme Court of Canada in K.L.B reaffirmed that the plaintiff must
establish that the wrongdoing is sufficiently connected to the wrongdoer’s role as
employee so that the conduct can be regarded as a materialization of the risks
created or enhanced by the enterprise. The Plaintiff in these proceedings has failed
to establish this by evidence or by argument.
[96] Similarly, the Supreme Court of Canada in B. (E.) v. Order of the Oblates of
Mary Immaculate (British Columbia), 2005 SCC 60, held that vicarious liability
should not be imposed against the administration of a residential school relating to
sexual assaults on a student by the school baker. The student was lured to the
employee’s room, in some cases by the promise of candy, and in other cases by
threats. In finding that vicarious liability should not be imposed, the court held
that the strong connection test could not be satisfied in view of the baker’s role at
the residential school.
Page 29
[97] Similar to the factual background in Jacobi, the opportunity that was
afforded M.N. to abuse cadets was indeed slight. The program was carried out in
the presence of the members of the cadet corps. with a number of instructors and
volunteers present. The abuse by M.N. only became possible through his efforts to
carry out these activities by isolating the Plaintiff from the public including from

the members of the cadet corps. As noted, the sexual activity occurred at times and
places unconnected with the cadet program.
[98] In A.B. v. C.D, the British Columbia Supreme Court found that the school
board was not vicariously liable for seven incidents of sexual contact with a
student by a teacher on the school premises. Although the board had provided the
teacher with the opportunity to spend time with the student, the opportunity was
not significant as the teacher’s duty did not require intimate contact.
[99] This court in John Doe v. Avalon East School Board, 2004 NLTD 239,
reviewed the Bazley and Jacobi framework in a school environment. There, the
court found the school board to be vicariously liable for the sexual assault
committed by a teacher during school time. The court followed the reasoning set
out in A.B. v. C.D. and Gorsline, but came to a different result. Of key importance,
in Avalon East the teacher’s role allowed him to remove the student from the class
to be instructed alone, effecting the teacher a high degree of trust. As well, the
wrongful act was considered to be directly connected with his responsibility as a
teacher. The judge found that those factors distinguished the case from Gorsline
and A.B. v. C.D.
[100] The Supreme Court of Canada in Bazley and Jacobi held that where sexual
abuse taken outside the employment setting and outside the hours of work, such
factors will negate a finding of vicarious liability. The court stated in Bazley at
paragraph 45:
45 … The mere fact that the wrong occurred during working hours or on the
jobsite may not, standing alone, be of much importance; the assessment of
material increase in risk cannot be resolved by the mechanical application of
spatial and temporal factors. This said, spatial and temporal factors may tend to
negate the suggestion of materially enhanced risk of harm, insofar as they suggest
that the conduct was essentially unrelated to the employment and any enhanced
Page 30
risk it may have created (for example, the employee's tort occurred offsite and
after hours). The policy considerations of fair compensation and deterrence upon
which vicarious liability is premised may be attenuated or completely eliminated
in such circumstances.

[101] In the present case, there were two incidents of minor sexual touching within
the cadet environment which occurred after the Plaintiff and M.N. had commenced
the sexual relationship outside the place and time of the cadet activities. In Jacobi,
the court found that such occurrence would be insufficient to impose vicarious
liability. The majority stated at paragraph 84:
84 … That being the case, I do not think the one act of sexual touching which
occurred on the Club van, given that it was a minor and incidental part of
Griffiths' ongoing campaign of sexual predation outside Club facilities and
outside Club hours, was sufficient to trigger no-fault liability. As McLachlin J.
pointed out in Children's Foundation at para. 45, the mechanical application of
time and place criteria obscures the more fundamental analysis.
[102] In conclusion, I find that the Plaintiff’s claim that the sexual acts are
sufficiently related to conduct authorized by the Crown Defendants is overstated
and exaggerated. The sexual relationship between M.N. and the Plaintiff was
initiated and conducted outside the facility used by the cadets and outside the time
of the scheduled events. The meetings for sexual activity were planned from cell
phones, home phones, text messages, emails (including those from M.N.’s work),
having no involvement with the cadets or the Crown Defendants. The enterprise
provided by Canada was exercised in the presence of approved volunteers and
carefully vetted instructors and officers. M.N.’s abuse was perpetrated by his
hiding the nature of his conduct from the public at large including from teachers,
students, parents and police. No one in the cadet corps. knew of the relationship.
M.N. was a training officer, which would not generally provide him with the
opportunity to abuse the Plaintiff nor did it significantly increase the risk of harm
to the Plaintiff. The vast majority of the assaults took place while M.N. was on
working hours or lunch break with his employer, a mental health facility, and while
the Plaintiff was under the authority of her school, her parents, or both.
[103] The claim of vicarious liability against Canada is therefore dismissed.

Page 31
NO CLAIM AGAINST CANADA
[104] As the claims in negligence, fiduciary duty, non-delegable duty and

vicarious liability are dismissed, the entire action against Canada (including the
Second Defendant, Fourth Defendant and Fifth Defendant) is accordingly
dismissed with costs.
DAMAGES AGAINST FIRST DEFENDANT
[105] Damages must now be assessed against the First Defendant related to the
Default Judgment entered on October 3, 2013.
Dr. Jeffrey Cunningham
[106] Dr. Jeffrey Cunningham gave evidence on behalf of the Plaintiff. He is a

registered psychologist practicing in St. John’s. He was contacted by the
Plaintiff’s lawyer at the direction of the Plaintiff who apparently found the
psychological help arranged through family to be ineffective.
[107] The Plaintiff attended at Dr. Cunningham’s office for a total of

approximately 30 sessions from May 31, 2013 to August 25, 2015. Dr.
Cunningham concluded that the Plaintiff met the criteria for post-traumatic stress
disorder (PTSD).
[108] In his reports and in the first part of his evidence, Dr. Cunningham was
asked by the Plaintiff’s counsel about the allegations of sexual activity reported by
the Plaintiff when she was 12 or 13 years old relating to events when she was eight
or nine years of age. He said that this was discussed at length with the Plaintiff
over a number of sessions. In her initial reporting to Dr. Cunningham, she
disclosed that at age 12 she was experiencing “disturbing, surreal perception of her
Page 32
body covered in blood, including her pubic region.” At age 13, according to Dr.
Cunningham in his report of February 13, 2015, she interpreted these visions as
having been raped several times by an unknown person. She further said that she
was not aware of who first interpreted these visions as being related to sexual
assaults. However, on the first day of trial she told Dr. Cunningham of the role

played by the online “counsellor” named Jack.
[109] This unusual and troubling event or perceived event was disclosed to her
parents, police and medical practitioners in August 2009 just approximately four
months prior to the commencement of her relationship with M.N. However, Dr.
Cunningham, in his reports and his evidence at trial, was quite adamant that this
episode did not give rise to any symptoms of PTSD or was otherwise associated
with the Plaintiff’s psychological condition when assessed by him. This issue will
be reviewed in more detail later.
[110] In summary, Dr. Cunningham concludes that the Plaintiff has severe PTSD,
“with marked functional impairments to social functioning, personal well-being
and quality of life.” This diagnosis is based upon three considerations: (1) the
results of the Clinician-Administered Post-traumatic Stress Disorder Scale (CAPS)
in which respondents answer questions concerning the level of symptoms
concerning potentially traumatic events; (2) the Plaintiff denied past or current
PTSD symptoms related to her previous sexual abuse disclosed when she was 12;
and (3) the non-verbal behaviour during the CAPS interview displayed intense
stress normally associated with PTSD.
[111] This aspect of the claim will also be discussed later in conjunction with the
expert evidence provided by Canada.
[112] The Plaintiff had last seen Dr. Cunningham on August 25, 2015. Reference
was made to its costs and the cost of travel as a major factor in discontinuing the
consultations. In his report of February 13, 2015, Dr. Cunningham recommended
one further year of psychotherapy of 30 hours, then re-assessing for “optimal
frequency of contact.” The Plaintiff did not attend 30 hours of psychotherapy. She
no longer takes any medication except for mild anxiety, which she took at exam
Page 33
time at university. At trial, Dr. Cunningham then recommended that she continue
psychotherapy once a week until she finishes a Ph.D. program at approximately
age 30. He reasoned that post-graduate years are very stressful and doctoral
supervisors can be “such powerful authority figures” that the experiences could
trigger episodes of PTSD.

Dr. Donna McLennon
[113] Dr. Donna McLennon, a registered psychologist, assessed the Plaintiff on

April 25 and 27, 2016, at the request of the Crown Defendants. An interview and
various tests were conducted with the Plaintiff. However, Dr. McLennon
concluded that due to the nature of the current assessment findings, a definite
opinion on the Plaintiff’s symptoms, diagnosis and prognosis could not be
provided due to problems with the overall data. She stated: “In summary, a valid
psychological profile could not be established due to lack of convergence or
inconsistencies within the data set.”
[114] Dr. McLennon noted the symptomology indicated in the findings of three
tests would ordinarily reflect in “not only a clear pattern of anxiety but a level of
symptomology that would significantly impair functioning.” However, the
background information provided by the Plaintiff, on the contrary, indicates a high
level of functioning in all aspects of her life, i.e. personal, social, academic,
employment, and sports and leisure. Accordingly, Dr. McLennon observed that
the Plaintiff was experiencing high levels of functionality and success in most, if
not all spheres of her life.
[115] According to Dr. McLennon, the medical and psychological criteria to

satisfy a diagnosis of anxiety spectrum disorders including PTSD as set out in the
Diagnostic and Statistical Manual of Mental Illness (DSM) and as PTSD, as
defined in DSM IV and V, criteria F and G, involves “the disturbance causes
clinically significant distress or impairment in social, occupational and other
important areas of functioning.” In view of the Plaintiff’s high level of social,
occupational and other areas of functioning, the criteria, according to Dr.
McLennon, does not appear to be satisfied.
Page 34
[116] With respect to social functioning, the Plaintiff advised Dr. McLennon that
she has a number of friends including some close friends. She reported to Dr.
McLennon having an intimate sexual relationship two months prior to the
interview. Since high school, she had a year-long relationship and has continued to
date. She is presently on good terms with her father, mother and extended family.

[117] I have previously reviewed her occupational, academic and extracurricular
functioning.
ANALYSIS – DAMAGES
[118] It is not disputed that M.N. committed a serious criminal and morally
reprehensible act in having a sexual relationship with the Plaintiff.
[119] One issue in these proceedings was whether the Plaintiff had experienced
similar symptoms previously to those said to be disclosed in relation to the abuse
by M.N. The Crown Defendants questioned the Plaintiff’s medical and
psychological health prior to her relationship with M.N. Of particular interest was
the Plaintiff’s initial claim that she was raped and abused when she was eight or
nine years old. As indicated, Dr. Cunningham is of the opinion that the Plaintiff is
suffering from PTSD which was solely caused by her relationship with M.N.
Further, in his evidence he places reliance on the Plaintiff’s assurance that she
denied past or current PTSD symptoms related to her perceptual event at age 12 or
any other life events during the CAPS interview.
[120] Dr. Cunningham’s understanding is not supported by the evidence. The

Plaintiff testified that “the perceptual event” arose when she commenced feeling
upset about “things” but did not know the reasons for this. She was experiencing
tension within her family mainly relating to her father and brother. The Plaintiff
was also being troubled by nightmares, which have been referred to as an obvious
symptom of PTSD.
Page 35
[121] In the Plaintiff’s medical charts from her family physician, a notation of
March 9, 2009, approximately eight months prior to the commencement of the
relationship with the M.N., reference is made to her problem with sleep. Her
physician recorded that the Plaintiff was experiencing decreased sleep over a
number of months. He refers to her having difficulty getting to sleep and notes

that she is suffering from anxiety. On her December 4, 2009, visit to her physician
just prior to her sexual activity with M.N., the Plaintiff again complained of
difficulty with sleep as she says that it is restricted to five hours nightly. She also
complained of headaches.
[122] In his reports and evidence dealing with the effects of M.N.’s sexual
relationship with the Plaintiff, Dr. Cunningham refers to the Plaintiff’s difficulty
initiating sleep, stress symptoms such as headaches at the onset of anxiety, and
more importantly, the presence of flashbacks as being consistent with the
symptoms normally experienced by persons suffering PTSD. As indicated, Dr.
Cunningham was under the impression that the Plaintiff denied past or current
PTSD symptoms related to any other life event. This assumed denial played an
important role in Dr. Cunningham’s opinion that the abuse by M.N. gave rise to
PTSD and that the abuse was the sole cause.
[123] The “perceptual event” of abuse when the Plaintiff was eight or nine years
old was first raised by Dr. Cunningham in his report and then by the Plaintiff in her
evidence. Dr. Cunningham also dealt with the matter in his evidence and
confirmed that he had not been advised of the complete account of the episode
until the first day of trial. When Dr. McLennon attempted to inquire about this
matter the Plaintiff responded that she had “no recollection” of these events. As
she did provide details of this to Dr. Cunningham for his report, for the 2014
discovery examination, and for trial, her lapse of memory at the time of Dr.
McLennon’s assessment cannot be accepted as credible.
[124] Dr. McLennon, when exploring suicidal ideation, indicated the Plaintiff
denied any past or present suicidal ideation or interest. The Plaintiff admitted that
she had overdosed on muscle relaxants and sleeping pills but that this occurred
resultant from having had developed a tolerance to this medication, and she most
likely mistakenly took more than the recommended dosage.
Page 36
[125] However on the Personality Assessment Inventory (PAI), the profile is

suggestive of significant suicidal ideation, which is indicative of persons who are
anxious, depressed and unsupported by the people around them. She stated on the
PAI that it was mainly true that she had thought about ways to kill herself for a
long time and contemplated what she would say in a suicide note. The Anxiety-

Related Disorders Scale score on the PAI indicated the Plaintiff to be an individual
associated with multiple anxiety-disorder diagnoses and broad impairment
associated with anxiety and severe psychological turmoil. Dr. McLennon found
that the results of the PAI and two other tests were clearly inconsistent with the
high level of functionality in all aspects of the Plaintiff’s life.
[126] Dr. Cunningham took issue with Dr. McLennon’s opinion that the Plaintiff’s
symptoms do not appear to meet diagnostic criteria for PTSD. This opinion,
according to Dr. Cunningham, was inappropriate as Dr. McLennon had generally
stated that due to the findings of the various assessments, she could not provide an
opinion of the Plaintiff’s symptoms, diagnosis, and prognosis. I do not agree with
his position. Dr. McLennon found that the inability to provide a specific opinion
was the result of the findings of the various assessments, which indicated a lack of
convergence or inconsistencies in the overall data produced, together with a
guarded and defensive reaction to information sharing. This raised the possibility
that the Plaintiff may have attempted to manipulate the results of the assessment
process.
[127] Dr. McLennon acknowledged that a forced participation in the assessment

process can give rise to a guarded and defensive manner of responding. As well,
the Plaintiff showed frustration in having to take part in the assessment.
Nevertheless, in spite of the test results Dr. McLennon was entitled to provide an
opinion that the background information did not support the diagnosis of extreme
PTSD indicated by Dr. Cunningham.
[128] The assessment of the impact of the abuse by M.N. was complicated by a
number of other traumatic events in her life: the breakdown of her parents’
marriage, the death of her grandfather who was her primary caregiver during her
childhood, and the disclosure at the age of 12 relating to past allegations of abuse.
Page 37
NON-PECUNIARY AND AGGRAVATED DAMAGES
[129] The purpose and objective for non-pecuniary damages is to provide

consolation and solace to the Plaintiff for such matters as pain, suffering,
inconvenience and loss of enjoyment of life. Non-pecuniary losses are not meant
to compensate a victim for actual losses. However, the Court must arrive at a sum
that is moderate, as well as reasonable to both parties.
[130] Damages in other cases can be of assistance and guidance but each case
varies depending on the facts and circumstances.
[131] On the issue of quantum of non-pecuniary and aggravated damages and the
related principles, the Plaintiff referred to:
 John Doe v. O’Dell (2003), 230 D.L.R. (4th) 383, 2003

CarswellOnt 3456 (Sup. Ct.);
 G. (B.M.) v. Nova Scotia Attorney General, 2007 NSCA 120;
 T. (K.) v. Vranich, 2011 ONSC 683;
 M. (K.M.) v. Roman Catholic Episcopal Corp. of the Diocese of
London in Ontario, 2011 ONSC 2143;
 M. (D.) v. W. (W.), 2013 ONSC 4176;
 Shaw v. Staples, 2013 ONSC 3290;
 Rich v. Bromley Estate, 2013 NLCA 24;
 Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130;
 Norberg v. Wynrib, [1992] 2 S.C.R. 226; and
 Morrow v. Outerbridge, 2009 BCSC 433.
[132] The Plaintiff has argued that an appropriate award for non-pecuniary and
aggravated damages would be $250,000.
[133] In the event that liability was found, the Crown Defendants referred to the
following cases: Blackwater, AB v. CD, and O’Dell.
Page 38
[134] As the Crown Defendants denied liability, an appropriate damage award was
not put forward by counsel.

[135] The following factors are considered relevant in making awards for damages
in sexual assault in this case:
(i) The assaults consisted of in excess of 30 incidents over a period of

four months.
(ii) The nature of the assault was vaginal intercourse and oral sex with
hugging, kissing and touching.
(iii) At the time the incidents commenced the Plaintiff was 13 years old,
and 14 years of age when they terminated.
(iv) The Plaintiff was vulnerable to M.N. because of their respective ages.
He was approximately 33 years of age when the relationship
commenced. However, unlike a teacher, he had no particular power
over her. She was not vulnerable to being forced to spend time with
him. The Plaintiff was able to call on her father to assist in
terminating the relationship.
(v) There were aggravating aspects to the relationship, including: M.N.

was a neighbor of the Plaintiff’s family, the father of her good friend,
and a friend of her father. As well, the Plaintiff’s father trusted M.N.
to take the Plaintiff home from cadets as well as to and from school.
(vi) M.N. did not use any force or violence.
(vii) The numerous sexual assaults and encounters perpetrated by M.N. had
a serious psychological effect on the Plaintiff. At trial, she was asked
by her counsel to relate the consequences of M.N.’s actions. She
spoke about living in a relatively small community where rumors,
often false, travel fast giving rise to unfair feelings of shame and guilt.
The Plaintiff felt further alienated from members of her family as she
felt that they may be holding her responsible, even though that was
not the situation. After the relationship she had problems with
Page 39
sleeping and the occurrences of headaches. The Plaintiff did not refer
to nightmares or flashbacks, but these occurrences were dealt with by
both psychologists in their reports and evidence.

[136] In diagnosing the Plaintiff with PTSD, Dr. Cunningham, using the CAPS
criteria, rated her symptoms as “severe,” which indicates “severe distress or
impairment, limiting functioning even with effort.” Less serious categories include
“mild with minimal distress or impairment” and “moderate but able to function
satisfactorily with effort.”
[137] That said, rather than getting distracted on classifying the nature of the
Plaintiff’s conditions to assess compensation, greater concern and emphasis should
be placed on the results of the wrongs inflicted on her. On this issue, I find the
evidence of Dr. McLennon more helpful and reasonable to that of Dr.
Cunningham’s. Furthermore, I find that Dr. McLennon’s opinion is more
consistent with the whole of the evidence including that of the Plaintiff. Both their
evidence confirm the high level of function and achievement following this
unfortunate relationship. As well, a review of her school progress reports from
2009 – 2012 confirms a consistent high level of achievements with no decrease in
marks.
[138] Without minimizing the serious nature and the results of M.N.’s actions,
certain inconsistencies in the Plaintiff’s evidence cannot be overlooked. I have
already referred to the Plaintiff’s confirming the allegations of rape at a time when
she realized that these events did not happen. As well, she made misleading
statements to Dr. McLennon and failed to be fully candid with Dr. Cunningham.
[139] On that issue, the evidence disclosed that both psychologists administered
several standardized tests and assessments. While the findings from these
evaluations are, no doubt, generally helpful for the purpose of diagnosis and
treatment, they may be less so for the purpose of a guide for compensation,
especially the assessments based upon self-reporting.
Page 40
[140] The Crown Defendants, in the event of liability, had argued that damages
should be reduced because of the Plaintiff’s psychological issues prior to her
relationship with M.N. Reference is made to the Plaintiff’s allegation when she
was 12 years old that she was repeatedly raped at the age of eight or nine;
followed by her denial of this event when she was approximately 18 years old;

then by her assertion to Dr. McLennon that had no memory of the incident or
having made the allegations. This, it is alleged, raises questions regarding the
Plaintiff’s prior mental health. There was some evidence that she received
counselling from Child Youth and Family Services regarding this matter around
August 2009 but the Court was not told of the details.
[141] In the absence of more evidence it is difficult to deal with the matter in terms
of the concepts of the “thin-skull” plaintiff and the “crumbling-skull” plaintiff, as
suggested by Defence counsel. These prior allegations made by the Plaintiff can
be considered in conjunction] with all the evidence concerning her background and
life experiences. It is noteworthy that in August 2009, while these revelations gave
rise to a crisis within the family with the intervention of the police, social services
and medical services, the Plaintiff continued to function in all aspects of her life
with impressive results.
[142] In summary, the actions of M.N. have had a serious and traumatic effect on
the Plaintiff. He took advantage of a young adolescent for his own gratification.
His abuse was both sexual and emotional and will have lasting effects.
Unfortunately, the Plaintiff has also had to endure the impact of the previous
traumatic events in her life. To her own credit, she has shown a high degree of
resiliency in the functioning of all aspects of her life in spite of these setbacks.
[143] In all the circumstances, an appropriate award is $110,000 which includes

$20,000 for aggravated damages.
Page 41
SPECIAL DAMAGES
[144] The Plaintiff claims $9,337.43 in special damages in respect of

psychological testing as follows:
Professional Services 2013 - $2,060.00

2014 - 1,950.00
2015 - 690.00
Travel to Accommodation 2013 - $1,350.51

2014 - 3,074.10
2015 - 212.82
TOTAL $9,337.43
[145] While the Plaintiff was not referred to a Psychologist, Dr. Cunningham
confirmed that it was necessary and that the Plaintiff found the sessions helpful.
The expenses for his services are reasonable.
[146] I do have some concern about the travel and accommodations. Dr.
Cunningham practices some distance from the Plaintiff. He was chosen directly by
the Plaintiff as the result of an online search. I am not totally convinced that she
could not find a competent psychologist in her area. However, she was concerned
that her visits to a psychologist in her area would become known, giving rise to a
privacy concern. I will therefore allow these expenses.
FUTURE ECONOMIC LOSS
[147] The Plaintiff claims the sum of $350,000 for future economic loss. The
evidence does not substantiate the basis for this award. To date, there is no
evidence that the Plaintiff missed any significant time from school or from the
various summer and part-time jobs obtained by her. Nor is there any evidence that
her entry into the job market will be delayed. Therefore, this aspect of the claim is
dismissed.
Page 42
FUTURE CARE COSTS
[148] The Plaintiff last received psychotherapy on August 25, 2015. In 2015, she

had five consultations. Since that time, her medical requirements were overseen
by her family doctor. She was not referred to her previous psychiatrist whom she
had seen once before, and she did not follow up for a subsequent appointment. At
the time of trial and the previous year when interviewed by Dr. McLennon, she
was using very little medication primarily for sleep, which had been a problem
prior to the relationship with M.N.
[149] Dr. Cunningham recommended future weekly psychotherapy sessions would

be advisable because of the pressure and stress associated with the two levels of
graduate school, together with the power exercised by the supervisors. Given the
Plaintiff’s scholastic record and her ability to deal with various previous traumatic
events, this frequency would appear to be unnecessary. As well, I have not
accepted Dr. Cunningham’s evidence as it relates to the severity of the Plaintiff’s
condition.
[150] However, the evidence is sufficient to establish a reasonable possibility of

the requirement that on occasion she may need to resort to counselling, not only for
this matter but for previous events and current issues. As this is in the nature of a
contingency, I am of the opinion that the Plaintiff is entitled to 50 hours at the rate
of $150 per hour for a total of $7,500 relating to the abuse perpetrated by M.N.
PUNITIVE DAMAGES
[151] In the pleadings, there is a claim for punitive damages. As M.N, was
sentenced for his crimes, it is not appropriate to award punitive damages.
Page 43
SUMMARY
(1) The claim in its entirety is dismissed against the Second Defendant, the

Fourth Defendant and Fifth Defendant.
(2) The Second Defendant, Fourth Defendant and Fifth Defendant are entitled to
costs on the basis of Rule 55, Column 3 of the Rules of the Supreme Court,
1986, S.N.L. 1986, c. 42, Sched. D.
(3) The Plaintiff is entitled to an Order against the First Defendant consisting of
the following:
(i) Non-pecuniary and aggravated damages of $110,000.00 plus

judgment interest from May 9, 2012.
(ii) Special Damages in the amount of $9,337.43 plus judgment interest

calculated in accordance with s. 4(2) of the Judgment Interest Act,
R.S.N.L. 1990, c. J-2.
(iii) Costs of future care damages of $7,500.00
(4) The Plaintiff is entitled to her costs against the First Defendant on the basis
of Column 3.
_____________________________
DAVID F. HURLEY
Justice

Jane Doe v. M.N., 2018 NLSC 162

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Jane Doe v. M.N., 2018 NLSC 162

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2018 NLSC 162 (CanLII)

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR

Citation: Jane Doe v. M.N., 2018 NLSC 162

Restriction on Publication: By court order made under subsection 486.4(1) of the

2018 NLSC 162 (CanLII)

Place of Hearing: St. John’s, Newfoundland and Labrador

The Plaintiff commenced an action against M.N. in relation to sexual

John W. Lavers &

No Appearance First Defendant / Third Party

Corinne Bedford & Appearing on behalf of the Second, Fourth

CASES CONSIDERED: Kienapple v. The Queen, [1975] 1 S.C.R. 729; R.

2018 NLSC 162 (CanLII)

STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Crown

RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986,

REASONS FOR JUDGMENT

2018 NLSC 162 (CanLII)

2018 NLSC 162 (CanLII)

[7] The proceedings before me revolve around issues of negligence, vicarious

JANE DOE (PLAINTIFF) BACKGROUND

2018 NLSC 162 (CanLII)

[10] In addition to impressive academic achievements, the Plaintiff, from an early

2018 NLSC 162 (CanLII)

The Plaintiff’s Relationship with M.N.

[16] M.N. moved from Community 1 to Community 2 on January 1, 2009 and

2018 NLSC 162 (CanLII)

M.N.’s Involvement with Cadets

[21] During an approximate four-month period of November 2009 to late March

2018 NLSC 162 (CanLII)

2018 NLSC 162 (CanLII)

The Plaintiff’s Involvement with Cadets

The Plaintiff’s Sexual Involvement with M.N.

4. The Agreed Statement of Facts entered in this matter reads as follows:

2018 NLSC 162 (CanLII)

Shortly before 2010, in December of 2009, the accused developed a

The accused also engaged in sexual intercourse with the complainant at

Over the course of roughly a 4 month period (from December 2009 to

The complainant could not quantify the number of occurrences of sexual

2018 NLSC 162 (CanLII)

[The complainant] gave a statement to police outlining the details of the

2018 NLSC 162 (CanLII)

2018 NLSC 162 (CanLII)

[38] The formation of cadet organizations is highly regulated. The National

administration of these organizations are set out in a comprehensive publication

2018 NLSC 162 (CanLII)

[40] Of relevance in these proceedings is CATO 23-04 Canadian Cadet

a higher level of supervision in terms of the number of appropriate supervisors for

2018 NLSC 162 (CanLII)

2018 NLSC 162 (CanLII)

2018 NLSC 162 (CanLII)

(The Nova Scotia Court of Appeal affirmed the decision dismissing

2018 NLSC 162 (CanLII)

[59] The claim of negligence is therefore dismissed.

BREACH OF FIDUCIARY DUTY

2018 NLSC 162 (CanLII)

[63] An aspect of the duty of a fiduciary is not to take advantage of a trust

[65] In Plotnikoff v. Saskatchewan, 2004 SKCA 59, the Saskatchewan Court of

2018 NLSC 162 (CanLII)

2018 NLSC 162 (CanLII)