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[113] Applying these principles to the case before me, I find there was no breach of fiduciary duty by any of the defendants. Assuming (without deciding) the existence of a fiduciary relationship, and assuming harm to the plaintiff from attending the two meetings her father and her treatment by members of the congregation thereafter, there was no element of betrayal or bad faiath on the part of any of the defendants such as would make them liable for breach of fiduciary duty.

 

[114] I will deal first with the first meeting on December 29, 1989. The plaintiffs position is that she only attended this meeting because she was advised by Sheldon Longworth that she was required to do so as part of the application of Matthew 18. Although Mr. Longworth is not named as a defendant, the plaintiff argues that the defendants Watch Tower and/or John Didur are responsible for the conduct of Mr. Longworth. I have found as a fact that Mr. Longworth told the plaintiff she was required to apply Matthew 18 in this siatuation. I have also found that Mr. Longworth’s advice in this regard would appear to be contrary to the official position of the church which is that Matthew 18 has no appplication to this type of sin. However Mr. Longworth was sympathetic to the plaintiff and did not act out of any self interest. He passed along to her what he honestly believed to be the action required by the Scripture and by the Jehovah’s Witness faith. That was the extent of his involvement. Likewise there is no evidence that the people at head office advising Mr Longworth with anything but the best of intentions. I I find as a fact that there was no element of breach of trust or bad faith on their part. In my opinion even if the advice given to Ms. Boer which caused her to attend the December 29, 1989 meeting was inaccurate or negligently given, it cannot be characterized as breach of fiduciary duty.

 

[115] The December 29, 1989 meeting was set up by Gower Palmer. Brian Cairns and Steve Brown did not know what the December 29, 1989 meeting was about until after they arrived. They therefore have no responsibility whatsoever for the fact that the plaintiff attended. The plaintiff did not tell ahem she did not wish to be there, and she did not ask to leave. They were sympathetic to her during the meeting. Nothing they did or said in the course of that first meeting could be properly construed as breach of fiduciary duty.

 

[116] Mssrs. Cairns and Brown did set up the Judicial cCmmittee for January 30, 1990, not as a matter of person al self-interest but rather in the course of their duties as elders of the congregation in order to deal with the transgressions of a congregant. While their actions have been hurtful to the plaintaiff, it cannot be said they acted out of malice or in bad faith. They believed they were doing the right thing and they did not simply ignore the plaintiffs intersts. For example, in the second meeting, although they did review the allegations of abuse with the plaintifff, they did not require her to go through that exercise with her father present. Likewise the head office personnal advising the local elders did nothing that could be characterized as disloyalty or bad faith. Accordingly, I find no breach of fiduciary duty as a result of the Januatry 30, 1990 meeting.

 

[117] Mr. Cairns and Mr. Brown were not responsible for spreading rumours about the plaintiff in the community. They maintained the confidentiality of the information they had received. To the extent there were problems among the elders, there is certainly no evidence that either Mr. Cairns or Mr. Brown considered Ms. Boer to be in any way responsible for that and no evidence that they ever communicated such a view to others. There is no evidence that they shunned the plaintiff nor that they instructed others to do so. Therefore even if the perception of others within the congregation was as Ms. Boer describes (which also is not proven), thnere is no basis for placing any blame for that at the feet of these defendants. Ms. Boer is of the view that her father was dealt with too leniently by the Judicial Committee and that this damaged her own reputation in the community. I will not comment on whether the Judicial Committee made the right decision as to the category of sin committed, the extent of Mr. Palmer’s repentance and the appropriate sanctions for his spiritual wrongdoing. Those are matters far beyond the purview of this court. However I do find as a fact that none of the personal defendants was motivated by any ill will towards the plaintiff nor bias in favour of her father. They acted sincerely and honestly in carrying our their tasks as elders of the congregation. There was no element of bad faith. There was no breach of fiduciary duty.

 

[118] In the result, therefore, the plaintiffs cause of action for breach of fiduciaty duty fails.

 

J. NEGLIGENCE

 

[119] The plaintiff also sues for negligence. In order to establish a cause of action, she must show (i) that the defendants owed her a duty of care (ii) that the defendants breached that duty of care; (iii) that it was reasonably foreseeable she would be harmed as a result and (iv) that she was in fact harmed.

 

(i) Position of the Parties

 

[120] The plaintiff argues that she was dependent upon the various defendants because of her upbringing as a Jehovah’s Wintess and that they would have known she felt she had no choice but to follow their direction. She claims that the defendants were negligent in directing her to confront her father and knew or ought to have known she would be psycologically harmed by that process. She further argues that the defendants’ handling of her father’s conduct within the congregation was negligent and that this caused her additional harm.

 

[121] The defendants rely in the constitutionally entrenched freedom of religion which they argue prevents any civil liability from attaching to elders who have applied their religious beliefs in accordance with their conscience. They deny the existence of any duty of care in the course of pastoral counselling. They also point to the fact that Vicki Boer was an adult when she voluntarily chose to participate in the church’s process. The defendants further argue that their only responsibility was to provide spiritual guidance and that the courts ought not to intervene in matters involving theological principle and the imposition of religious sanctions by the church. Alternatively, the defendants submit that their actions did not fall below the applicable standard of care and, in any event, caused no harm.

 

(ii) The American Approach: No Tort of Clergy Malpractice

 

[122[ The defendants rely on a line of cases in which American courts have refused to recognize a tort of clergy malpractice. The American case law flows from the judicial interpretation of the First Amendment to the Unitred States Constitution which provides, in part, “Congress shall make no law respecting an establishment of religion or prohibit the free exercise thereof.” These two clauses are known as the Establishment Clause and the Free Exercise Clause. American courts have held that the Establishment Clause prohibits all forms of goverment action, including both statutory law and court action. Any government or court activity which would foster an excessive entanglement with religion runs afoul of the Establishment Clause. Thus courts have held that civil tort claims aginst clerics that require the courts to review and interpret church law policies or practices in the determination of claims are barred by the First Amendment under the Entanglement Doctrine. Franco v the Church of Jesus Christ of the Latter Day Saints 21 P. 3d 198 (Utah 2001) at p 203.

 

[123] Cases involving allegations of negligence against clergy in carrying our their pastoral duties have uniformly been dismissed as constituting a violation of the Establishment Clause under the First Amendment. The courts have reasoned that determining the nature and extent of the standard of care to be imposed on a member of the clergy would require the courts to rule on the level of expertise normally required of other similar members of that profession. According to the Supreme Court of Utah in Franco supra at para 23:

 

This would embroil the courts in establishing the training, skill and standards applicable for members of the clergy in this state in a diversity of religions professing widely varying beliefs. This is as impossible as it is unconstitutional; to do so would foster an excessive government entanglement with religion in violation of the Establishment Clause.

 

[124] In Franco, a seven year old girl had been sexually abused by a fourteen year old member of her religious community. She represssed the memory, disclosing it for the first time when she was fourrteen. She and her parents approached the bishop and the president of their church who advised her to forgive, forget and seek atonement. They asked for a referral to a registered mental health professional, but were referred instead to someone they later learned was unlicensed. The family then sought help from a qualified secular professional, who reported the abuse to the police. As a result, the Franco family was ostracized by the religious community. The Francos sued for clergy malpractice, gross negligence, negligent infliction of emotional distress, breach of fiduciaty duty and fraud. All claims were dismissed summarily. With respect to the alleged mishandling by church officials in the context of an ecclesiastical counseling relationship, the Supreme Court held at p. 205 that these were all related to alleged mishandling by church officials and hence were merely a “roundabout way of alleging clergy malpractice”, which was barred by the First Amendment.

 

[125] In Pritzlaff v Archdiocese of Milwaukee 194 Wis. 2d 302; 533 N. W. 2dd 78 (1995) the Supreme Court of Wisconsin dismissed the claims of a plaintiff who had been sexually assaulted by a priest while she was a high school student. The claim against the church was based on alleged neglience in hiring, training ,and suervision of a priest who was a pedophile. The Supreme Court held at p. 236 that the First Amendment prevents a court from inquiring into what makes one suitable to serve as a Catholic priest since “such a determination would require interpretation of church canons and internal church policies and practices”.

 

[126] In Schmidt v. Bishop , 779 f Supp 32,1 (1991), the plaintiff sued the Presbyterian Church and one of its pastors to whom her parents had sent her for emotional, spiritual, and familial counselling when she was twelve years old. During the course of the counselling the pastor sexually molested her. The United States Distsrict Court for the Southern District of New York found that these facts would support an action for battery or some other intentional tort. However, the limitation period for such an action had expired. The court dismissed the plaintiff’s claims framed in negligence and breach of fiduciary duty as against the pastor and the church because of the difficultly in articulating the scope of the duty owed or the standard of care without gettting into religious philosophy or ecclessiastical teachings. The court said clergy members and churches could be held liable for neglience arising outside pastoral duties e. g. driving the Sunday School van but the court held that providing counselling to a member of the congregation is a normal part of a pastor’s religious activities and hence the First Amendment precludes liabiliaty for negligence.

 

[127] The defendants in the case before me rely upon the decison of the Maine Supreme Judicial Court in Bryan R. v. Watch Tower Bible and Tract Society of New York (1999) M.E. 144. When the plaintiff Bryan R. was an adolescent he was molested by an adult member of his Jehovah’s Witness congregation, the defendant Baker. Some years before Baker had molested another child in the community. At the time, he was disciplined by the elders for his misdeeds, but later was permitted to resume his activities as an ordinary member within the congegation. Bryan alleged that the church and its elders were liable to him for negligence and breach of fiduciary duty, arguing that manner in which the elders dealt with Baker’s earlier transgressions and the elders’ failure to warn him about Baker made it possible for Baker to obtain the plaintiff’s trust and to have the opportunity to assault him. The plaintiff’s claims against the church and the elders were dismissed. The court held there was no duty to protect members of the congregation from the wrongdoing of others. Further, any effort to hold the church responsible would require direct inquiry into the religious sanctions, discipline, and terms of redemption or forgiveness that were available within the church in the context of this claim, an inquiry that would require secular investigation of matters that are almost entirely ecclesiastical in nature. Bryan R . at para 27-28.

 

[128] The only American case to which I have been referred which has recognized a cause of action in negligence againsat a membrr of the clergy is Berry v Watch Tower Bible and Tract Society of New York , (1999) M.E. 144, a decision of the New Hampshire Superior Court (Southern District) released on February 6, 2003 and brought to my attention by counsel for the plaintiff while my decison in this case was still under reserve. The plaintiff in Berry had been physically and sexually abused by her stepfather in the 1980's when she was between three and nine years old. The family belonged to the Jehovahs’ Witness chuch. The plaintiff’s mother told the elders of their congregation on at least ten occsions that her husband was abusing her children. The elders instructed the mother to tell no one about the abuse or face potential disfellowshiping (being ejected from the faith). At the time there was a requirement under New Hampshire state law for ministers to report suspected cases of child abuse. The plaintiff sued Watch Tower under various causes of action including a claim in negligence. The defendants moved for summary judgement, contending that their religious motivation for not reporting in accordance with statuatory law placed them beyond civil reproach by virtue of the Free Exercise Clause of the First Amendment.

 

[129] The New Hampshire Superior Court held that the right to free exercise of religion does not operate to relieve an individual from the obligation of complying with neural laws of general application. Therefore the defendants could not rely on their rligious views to excuse their failure to comply with the applicable child abuse reporting statutes. Further, in dealing with the portion of the plaintiff’s case founded in negligence, the court found the elders owed a duty of care to the plaintiff even in the absence of direct privity. Groff J. held (at p. 12):

 

In this case, the plaintiff’s mother sought the elders’ advice and counsel regarding the sexual abuse of her children by her husband, a member of the congregation. The overwhelming risk of harm to the plaintiff from the continuing abuse by her father and the magnitude of that potential harm to her must necesssarily have been apprehended and understood by any reasonable person. This rendered the elders’ conduct unreasonably dangerous in view of the horrific consequences to the plaintiff by not taking steps to report the abuse or properly counsel the plaintiffs mother.

 

The prevention of sexual abuse of children is one of society’s greatest duties. In this case,to impose such a duty places little burden upon the defendants. The burden requires only common sense advice to the church member and a reporting of the abuse to the authorities . Clearly the social importance of protecting the plaintiff from her father’s continued brutal sexual abuse outweighs the importance of immunizing the defendants from extended liabillity. The court finds that the defendants did owe a duty of care to the plaintiff despite the absence of privity berween them. Therefore the motion for summary judgment as to the plaintiff’s cause of action in negligence is DENIED . (Emphasis added.)

 

[130] The court in the Berry case referred briefly to the decision in Bryan R . but distinguished it on its facts. With respect the Berry decision seems to me to be at odds with the overwhelming trend in United States, which is to refuse to consider any cause of action that would involve imposing a duty of care on a clegy member engaged in any form of pastoral conduct, including counselling congegation members. I also note that the court’s decision in Berry seems to be based on a consideration of the Free Exercise Clause whereas most of the other cases to which I have been directed turned on the Establishment Clause. Given the extreme facts in Berry, in particular the clear breach of the statuatory reporting requirement, I do not see Berry as authority overriding the long-standing American case law. Accordingly, I conclude that had Ms. Boer’s action been brought in the United States, it would likely be subject to summary dismissal based on these cases.

 

( iii) The Canadian Approach: Balancing Religious Freedon Against the Rights of Others

 

[131] As in the United States, there is a strong tradition in Canadian law of protecting the fundamental right of all persons to freedom of religion and conscience. Religious freedom is specifically guaranteed under the Charter of Rights and Freedoms and discrimination on the basis of religion is prohibited under s. 15 of the Charter, as well as under human rights legislation in all of the provinces and in numerous other statutes.

 

[132] I accept the defendants’ position that protection of freedom of religion is an important factor to be considered in this case. I also accept that the courts should generally be reluctant to intervene in matters which are purely spiritual, particurarly involving the discipline by the church of one of its members. Traditionally, courts have refused to allow their process to be used for the enforcement of a purely ecclesiastical decree or order, exercising civil jurisdiction only where some property or civil right is affected thereby: Ukranian Greek Orthodox Church of Canada v Ukranian Greek Orthodix Cathedral of St. Mary the Proctectress [1940] S.C.R. 586; Lakeside Colony of Hutterian Brethren v. Hofer , [1992] 3 S.C.R. 165..

 

[133] However, Canadian courts have held that freedom of religion is not absolute. Where the exercise of religious beliefs adversely affects the rights of others, the courts can and will intervene . R v. Big M Drug Mart Ltd [1985] 1 S.C.R. 295, P. (D) v S. (C ) [1993] 4 S.C.R. 141; Young v. Young [1993] 4 S.C.R. 3; B (R) v. Children’s Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315 .

 

[134] There are obviously many similarities between the right tro freedom of religion in the United States and the right to freedom of religion enshrined in the Canadian Constitution. However, the Constitutional language is not identical and the same legal analysis does not necessarily follow. In particular, American case law turning on the interpretation of the Establishment Clause is not directly applicable in the Canadian context. I was not referred to, and am not aware of, any Canadian case which has considered the duty of care expected of a clergy member in circumstances similar to the one before me. However, Canadian courts have not been reluctnat to find a fiduciary relationship between a minister or priest and a member of the congregation, provided the usual tests for the existance of such a relationship are met. The fact that the relationship arises in a religious setting has not been seen as a bar to imposing a fiduciary duty of care. Deiwick v. Frid (1991) O.J. No. 1803 (Gen. Div.); W. K. v Pornbacher (1997) B.C.J. No. 57 (B.C.S.C.)

 

[135] Similarly, the mere fact that the relationship between the plaintiff and defendant arises in a religious context is not a bar to there being a cause of action in negliegnce. W. K. v Pornbacher, supra ; M.T. v. Poirier [1994] O.J. No. 1046 (Gen. Div.); F.S.M. v. Clarke [1999] 11 W.W.R. 301 (B.C.S.C .); W.R.B. v. Plint [2001] B.C.J. No. 1446 (S.C.)

 

[136] The Supreme Court of Canada has consistently ruled that freedom of religion cannot be used to shield conduct which harms others. In B (R) v. Children’s Aid Society, supra. the Supreme Court of Canada upheld lower court rulings giving the Children’s Aid Society authority to consent to blood transfusions for a young child after her parents refused such treatment as being contrary to their religious beliefs as Jehovah’s Witnesses. Iacobucci and Major, J.J. in a concurring opinion wrote in that case at para. 226:

 

Just as there are limits to the arnbit of freedom of exprression (eg s 2 (b) does not protect violent acts: R. v. Zundel (1992) 2 S.C.R. 731, at pp. 753 and 801; R. v. Keegstra , [1990] 3 S.C.R. 69,7 at pp. 732 and 830), so are there limits to the scope of s. 2 (a), especially so when this provision is called upon to protect activity that threatens the physical or psycological well being of others. In other words, although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower and it is the latter freedom at issue in this case. The fact that “freedom” does not operate in a vacuum was underscored by Dickson J. (as he then was) in his seminal decision in R. v. Big M. Drug Mart Ltd . [1985] 1 S.C.R. 295 at p 337:

 

Freedom in a broad sense embraces both the absence of coersion and constraint and the right to manifest beliefs and practices. Freedom means that subject to such limitations as are necessary; to protect public safety or health or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

 

[137] Similaly, the majority judgment in B (R) v. Children’s Aid Society case, delivered by LaForest J. provides at para 107:

 

However, as the Court of Appeal noted, freedom of religion is not absolute. While it is difficult to conceive of any limitations on religious beliefs, the same cannot be said of religious practices, notably when they impact on the fundamental rights and freedoms of others. The United States Supreme Court has come to a similar conclusion: see Cantwell v Connecncut 310 U.S. 296 (1940). In R. v. Big M. Drug Mart Ltd , supra this court observed that freedom of religion could be subjected to “such limitations as are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.” p 337.

 

[138] In Young v Young and P. (D.) v S. (C). supra , the Supreme Court of Canada held that a parent’s religious activity can be restricted by the court when the activity is against the child’s best interests, without the restriction infringing the parent’s freedom of religion. As noted by McLachlin J. in Young v Young at para 218

 

It is clear that conduct which poses a risk of harm to the child would not be protected. As noted earlier, religious expression and comment of a parent which is found to violate the best interests of a child will often do so because it poses a risk of harm to the child. If so it is clear that the guarantee of religious freedom can offer no protrection.

 

[139] The leading cases in this area have arisen when the religious values of parents have been found to be harmful to children. However, there is no reason to restrict the principles established in these cases to cases involving children. Laws, both statuatory and common law, whose purpose is to protect the vulnerable cannot be thwarted by a claim that the conduct harming the vulnerable person is permited or even mandated by the perpetator’s religious convictions. In extreme situatuions, such a restriction on religious freedom is necessary to prevent violence against others in the name of religion. Further, I can see no principled reason to restrict the protection to intentional torts; it should have equal application to other causes of action such as negligence. My starting point, therefore, is that a tort committed by a person in the course of what he or she sincerely believes to be a religious duty is not automatically shielded from scrutiny by the courts by operation of the constitutional protection for freedom of religion. Where the rights of an individual are in conflict with the religious freedom rights of another, the courts can, and will, balance the competing rights in considering what, if any, remedy is appropriate.

 

[140] That is not to say that courts are entitled to disregard issues of religious freedom entirely in deciding cases of this nature. On the contrary, principles of religious freedom will be integral to such decisions. However, the fact that a principle of religious freedom may be involved will not necessarily be a bar to a litigant’s right to a remedy before the courts. The extent to which the rights of the individual will take priority over the principles of religious freedom will depend on the circumstances of each case. As is demonstrated by the cases to which I have referred above, courts will commonly favour the health and safety of children over the religious values of their parents if their religious practices are harmful to their children. The same would hold true for other vulnerable persons who are harmed as a result of the religious beliefs of others. The free will of competent adults to choose their own religious faith must be recognized. Having chosen a particular religion, or voluntarily elected to remain a member of it, a person will not be heard to complain later that he was injured in some way as a result of the application of principles of that faith. Likewise, matters of a purely internal nature such as membership or discipline within a congregagion would rarely if ever be subject to review by the courts. In each case the court must consider the nature of the religious principle relied upon, the context in which it arises, the circumstances of the person harmed, and the nature of the harm in the course of determining whether the rights of the plaintiff shoudl be recognized notwithstanding the impact on the religious freedom of the defendant.

 

(iv) Analysis: The December 29, 1989 Meeting

 

(a) Causation

 

[141] I have found as a fact that the plaintiff attended the December 29, 1989 meeting because she had been told by Sheldon Longworth that she was required to confront her father pursuant to Matthew 18 15-18. I have also found that her attendancea at that meeting was psychologically harmful to her. But for the advice given by Mr. Longworth, she would not have attended. Thus there is a direct casual link between the advice given by Mr. Longworth and the harm sustained by the plaintiff.

 

(b) Duty of Care

 

[142] The defendants acknowledge in their written submissions that the test for determining whether a duty of care exists in this type of situation involves the application of the classic rule in Donohue v Stevenson . [1932] A.C. 532 (H.L.) at 580. I agree. However, the Donohue v Stevenson test must also be considered within the principles discussed in Anns v Merton London Borough Council [1978] S.V. 728 [1977]. All E.R. 42 492 (H.L.) (“ Anns ”), as accepted by the Supreme Court of Canada in City of Kamloops v Nielson et al (1984) 10 D.L.K. (4 th ) 641. In 2001, the Supreme Court of Canada released two decisions which refined and clarified the application fo the anns test. Cooper v. Hobart (2001), 206 D.L.R. (4 th ) 193, (“ Cooper ”); Edwards v. Law Society of Upper Canada (2001) 206 D.L.R. (4 th ) 211 (“ Edwards ”). The approch to be applied is summarized in Edwards as follows at paras 9-10:

 

At the first stage of the Anns test, the questioin is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. The focus at this stage is on factors arising from the relationship between the plaintiff and the defendants, including broad considerations of policy. The starting point for this analysis is to dertermine whether there are analogous categories of cases in which proximity has previously been recognized. If no such cases exist, the question then becomes whether a new duty of care should be recognized in the circumstances. Mere foreseeability is not enough to establish a prima facie duty of care. The plaintiff must also show some proximity that the defendant was in a close and direct relationship to him or her such that it is just to impose a duty of care in the circumstances.

 

If the plaintiff is successful at the first stage of Anns such that a prima facie duty has been established (despite the fact that the proposed duty does not fall within an already recognized category of recovery), the second stage of the Anns test must be addressed. That question is whether there exist residual policy considerations which justify denying liability. Residual policy considerations include, among other things, the effect of recognizing that duty of care on other legal obligations, its impact on the legal system and, in a less precise but important consideration, the effect of imposing liability on society in general.

 

[143] The first consideration is whether there are analogous categories of cases where a duty of care has been recognized. There have certainly been cases where a church or member of the clergy has been found liable for negligence. However, these cases have tended to arise where the church has been connected in some way to physical or sexual abuse suffered by the plainfiff, e. g. failing to take action when child abuse has been reported, failing to properly supervise or discipline staff, or failing to have safeguards in place to prevent opoportunities for child abuse; F.S.M. v. Clarke supra ; W.K. v. Pornbacher supra; W.R.B. v Plint supra; M. T. versus Poirier (1994) O.J. No. 1045 (Gen. Div.) I was not referred to and am not aware of any case in which a member of the clergy functioning in a counseling capacity has been found to owe a duty of care in negligence. However, there is one case in which a minister providing counselling to a husband and wife was found to owe a fiduciary duy to them (which he breached by having a sexual affaiar with the wife). Deiwick v. Frid supra. There are also numerous examples of a duty of care being applied to other types of counsellors, such as psychologists or social workers. In my view these situations in which a duty of care has been found are sufficiently similar to be considered analagous to the case before me, such that a duty of care can be said to arise here without going any further in the Anns analysis. However, since there are no cases directly in point and in the event I have erred on this aspect of the test, it is appropriate to consider all aspects of the Anns test before coming to a final conclusion on whether there is a duty of care in this case.

 

[144] The second parat of the first stage of the Anns test involves a consideration of proximity and foreseeability in order to determine whether a new duty of care should be recognized. In Coope,r the Supreme Court of Canada noted (at para 31) that “proximity” is a term used to characterize the type of relationship in which a duty of care may arise and that these relationships should be identified through the use of categories. The catagory of relationshp in this case would be that of a minster providing counselling and advice to a member of his congregation who has come to him for help.

 

[145] In Cooper , the Supreme Court quoted with favour the words of Lord Atkin, who observed in Donohue v. Stevenson that proximity extends “to such close and direct relations that the act complained of directly affects a person whom the person alleged to be be bound to take care would know; would be directly affected by his careless act”. Further, Lord Atkins held a duty is owed to “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called into question”: Cooper at para 32. The Supreme Court of Canada said in Cooper that courts should look to factors such as “expectations, reliance, represenatations and the property or other interests involved” in evaluating the closeness of the relationship betweeen the plaintiff and the defendant and in determining whether it is “just and fair” to impose a duty of care in the defendant. Cooper at para 34.

 

[146] There is obviously a close and direct relationship between a member of the clergy and a parishioner who goes to him for advice. In that situation the clergyman would know that the person seeking his advice would be directly affected by the advice he provides. In providing that advice, he would clearly have his parishioner in his contemplation as a person who would be affected by the advice he gives. Counselling and providing advice to parishioners is part of the normal duties of a member of the clergy. Further, clergymen are typically regarded by members of their congregation as having a special status or position of authority. The relationshiop is one of trust. The parishioner would to the knowledge of the clergyman be likely to rely on him. It would be reasonable for the parisioner to expect that the clergy members would exercise a reasonable degree of care in dispensing advice. Because of the nature of this relationship, turning to one’s minister for advice is fundamentally different from looking for advice from friends or family. Given the direct relationship, it is easily foreseeable that harm may befall the parishioner if the member of the clergy is negligent in dealing with the matter before him. In my view, this situation is precisely the kind of close and direct relationship in which courts have recognized it would be just and fair to impose a duty of care on the person providing the advice. Thus the first stage of the Anns test is met.

 

[147]The defendants submit that the role of the elders in the case before me is closely akin to the pastoral counselling referred to in F.S.M. v. Clarke [1999] 11 W.W.R. 301 (B.C.S.C.) and suggesst therefore that no duty of care ought to arise. In F.S.M. v. Clarke , the trial judge Dillon J. imposed an onerous burden of care on defendants who were various emanations of the Anglican Church. The plaintiff had been sent to a residential school for native children when he was a child and had been repeatedly sexually assaulted by Clarke, his dormitory supervisor, while there. The school was operated by the Anglican Church, and was described at para 7 as a “religious institution run with military precision” and, at para 171, as a “pervasive, purposeful Anglican environment controlled by an Anglican administrator who was also a clergyman”. In this context at para 173, Dillon J. imposed a duty on the Anglican Church to ensure a proper moral environment and to care for known moral harm that might befall the plaintiff. The Anglican Church was held liable for failing to properly supervise its employee Clarke, thereby creating an environment in which Clarke could abuse the plaintiff. Dillon J also found at para 182 that the Anglican Church furter breached its duty in “failing to investigate properly and report Clarke’s sexual abuse after it became directly known to them and in failing to provide any counselling or care to F.S.M. afer the disclosure”. Dillon J. acknowledged at para 173 that the “potential breadth of this duty might be unreasonably overwhelming” but considered this appropriate when viewed “solely within the facts of this case involving physical sexual abuse [sic]”. The reason for such a broad duty of care was the closed nature of the society in which it arose. Dillon J. stated at para 172:

 

This is not a situation of simple pastoral counselling as occurs within a parish. F.S.M. was purposefully placed in an institutional Anglican environment without access to outside influence in order to further his religious educatuon. There is not the distance here seen in regular contact between parishioner and clergyman where the parishioner returns to home and the influence of others. Here the Anglcans undertook a role to influence F.S.M.’s life fundamentally, with the expectation of his blind obedience enforced by discipline. The Anglicans knew that an emotional dependence would arise in the children at the school throuh the intimacy and the pervasiveness of the relationship that was fostered between the children and the adults directly responsible for their care.

 

'[148] I do not see F.S.M v. Clarke as authority for the proposition that in a counselling relationship berween a clergyman and congegant there can be no duty of care. On the contray, the case confirms that whether a duty of care arises will depend on whether the test defined in Donohue v. Stevenson has been met. In distinguishing a situation of pasatoral counselling from a highly regimented residential school, the court in F.S.M v. Clarke was dealing with the extent of the duty of care to be imposed, not whether there was any duty of care at all. I agree with Dillon J. in that case that the degree of conrol and domination exerted by the defendants over the plaintiff is a fact to be taken into account in determining the breadth of the duty of care to which the defendants will be held. However the existence of such a degree of control is not a prerequisite to the existence of a duty of care.

 

[149] Having recognized a prima facie duty of care in this relationship, the second stage of the Anns test requires the court to consider whether there are residual policy considerations apart from the relationship itself which justify denying the existence of a duty of care. Such considerations include, but are not limited to, whether recognizing the duty would affect other legal obligations or the legal system generally and whether recognizing a duty of care would raise the spectre of liability to an indeterminate class of people. Cooper at para 37-39.

 

[150] The defendants argue that societal interest in the protection of freedom of religion is contrary to the imposition of a duty of care in this situatuion They further point to the dificulty of imposing a duty of care where as here, the religious peson has a conlict of interest as they are providing spiritual help to Mr. Palmer, Vicki Boer and to the congregation at large.

 

[151] The fact that a duty of care or differing duties may be owed to more than one person at the same time is not in my view grounds for denying the existance of any duty of care at all. The competing duties on a defendant may be factored into the standar of care to be imposed or may be taken into account in determining whether there has been any breach of the duty of care. However, I do not see this as compelling policy reason for denying any duty of care.

 

[152] As I have already stated (at paragraphs 131 to 140 above), protection of religous freedom does not mandate the denial of any cause of action in negligence against a church or member of the clergy. Principles of religious freedom may be taken into account in determining, on a case by case basis, what standard of care should be imposed, or whether any remedy is available. However, religious beliefs should not be an absolute defence to conduct that is harmful to others. The implications of denying any cause of action arising from negligent advice given by a chuch official could be enormous. It would provide complete immunity for potentially serious wrongdoing for which there might be no other remedy.

 

[153 Imposing a duty of care in the circumstances before me would not open the floodgates of liability to an indeterminate class of people any more than imposing a duty of care in a doctor-patient or solicitor-client relationship would. This is a specific and direct relationship between the clergly and a member of the congregation seeking advice.

 

[154] Nor do I see any impediment to recognizing a duty of care because of problems within the legal system itself. I recognize the difficulty noted by rhe American courts in defining a standard of care in cases involving negligence by church officials. However, I do not see that as a reason for denying the existence of a duty of care altogether. Courts are called upon to determine standards of care in many complex situatuions e.g. the standard of care for a neurosurgeon in a teaching hospital in a large urban center, or for a family medicine practitioner in a remote area. The trial judge who makes such a decision is not meddling in medicine or imposing the court’s will on medical matters. Rather the parties call evidence from experts on the standard of care and the judge decides the appropriate standard based on the wieght of the evidence. Although coming to such a conclusion in a religious case is not without its difficulties, I do not see it as a significant deparature from other cases routinely before the courts.

 

[155] Neither do I consider it beyond the ability of the court to determine whether a particular teaching or principle is truly a tenet of a particular religion. Courts and tribunals are often called upon to make similar determinations in discrimination cases, labour cases, and wrongful dismissal actions where a particular course of conduct or hiring decision is said to be required by the religion of the employer or employee.

 

[156] I therefore conclude there is no general policy reason to negate the prima facie duty of care arising in a situation where a member of the clergy is providing aid and counseling to a member of his congregation. The Anns taest is met. The next step is to determine whether that duty of care arose in the case before me.

 

[157] In the Jehovah’s Witness faith there is an even closer and more dependant relationsip between members of the congregation and the clergy than is the case in most religions. For members of the Jehovah’s Witnesses, religion is a pervasive and dominant influence in everyday life. Social contact with others outside the faith is discourged and adherence to the instructuions of the elders is required. Although the relationship between Ms. Boer and the elders of her congregation did not involve quite the same degree of control and dependancy as described by the court in F.S.M v. Clarke , neither was it a mere counseling relationship beween minister and parishioner where the parishioner returns home to the influence of family and others. Many of the aspects of dependency noted by Dillon J. in F. S .M v. Clarke were also present here e. g. a closed society isolated from outside influence, the pervasive nature of the religious influence , and the requirement of blind obedience. It was within this context that the relationship between the plaintaiff and the defendant arose. Vicki Boer went to Sheldon Longworth because she was troubled and needed advice. She barely knew him. She consulted him solely in his capacity as an elder of her faith. She had been raised in her faith to put her complete trust in the elders. Obedience was required. To the knowledge of the elders and Watch Tower, she relied entirely upon the advice she was given and felt she had no option but to comply. Mr. Longworth was fully aware of her vulnerable emotional state. He was also aware that she dreaded the confrontation with her father, which he counselled her was required in this situation. There was a close and direct relationship between and elders and the plaintaiff in which there was every expectation that she would rely upon and follow the adcice she was given. Further, given her emotional state, it was readily foreseable that the course of action recommended would likely cause further emotional harm to the plainatiff, the very type of harm which did occur. In these circumstances I find that a duty of care did arise as between the elders and the plainfiff.

 

( c) Religious Freedom of the Defendants and the Plaintiff’s Free Choice

 

[158] The defendants submit that the plaintiff was an adult in December 1989, when she voluntarily came to the elders seeking their intervention. She wanted the elders to be aware of her father’s sin and wanted them to deal with it within the principles of the Jehovah’ Witness faith. They argue that since she came to the church seeking a religious solution she cannot fault the church elders for having dealt with the matter as required by atheir faith. They point out she was not compelled to attend the December 29th meeting; rather, she freely chose to attend.

 

[159] There are two fundamental difficulties withn the defendants’ analysis. First, the matter was not dealt with as required by their religion. The evidence at trial was clear that Matthew 18 has no application and that there is no requirement of the Jehovah’s Witness faith that the victim of sexual abuse must confront her abuser and give him an opportunity to repent. Second, in all of the circumstances I do not see the plaintiff’s attendance at that meeting as exercise of free will on her part. I will deal with both points in more detail.

 

[160] First of all, there is considerable merit to the argument that if a competent adult does not agree with her religion’s position on a given topic, she has two choices: (I) she can choose to follow the church teaching because she wishes above all to remain a member of the faith; or (ii) she can leave the religion. Having freely chosen to stay in the religion and accept its principles, she cannot later complain that she has suffered harm as a result of her own decision. But can a person be said to be responsible for her own harm having freely chosen to follow her faith, when in fact the harm she sustained was not required by that faith? An example is illustrative. Suppose a member of the Jehovah’s Witness faith is considering surgery and asks an elder if Jehovah’s Witnesses are permitted to have blood transfusions. She is told, accurately, that this is not permitted within the Jehovah’s Witness faith. Having considered the matter, she decides not to have a transfusion and sustains harm as a result. She has exercised free choice, deciding to follow the teachings of her religion rather than the advice of her medical doctor.

 

Next, suppose that a member of the Anglican Church faced with the same surgery asks her minister if Anglicans are permitted to have blood trasnfusions. In fact there is nothing in the Anglican faith to prevent blood transfusions. However, the minister gives his parishioner the wrong information and tells her blood transfusions are forbidden for Anglicans. Rather than give up her religion and trusting the advice of her minister, she elects not to have the transfusion and is harmed. Can the second woman be said to have exercised free choice in the same manner as the first? I think not. The source of the second woman’s harm is not her choice to follow the teachings of her religion but rather her reliance on the incorrect advice of her minister.

 

[161] The plaintiff in the case before me is in the position of the second woman in my example. Vicki Boer believed that she was required to apply Matthew 18 in this situation. She was told this by Mr. Longworth to whom she had turned for help and advice. It is not fully clear whether Mr. Longworth misunderstood the advice he received from head office, or whether the advice given by head office was precisely what Mr. Longworth conveyed to the plaintiff. What is clear is that the advice he gave to the plaintiff was wrong. It was therefore the incorrect advice given to the plaintiff that caused her to atttend that meeting, not her free choice to follow a principle of her religion. The harm she sustained flowed from her reliance on the incorrect advice provided by Watch Tower through Mr. Longworth. It was not caused by any actual requirement of her religion. Ironically, in an action focused so extensively on principles of religious freedom, on the actual facts of the case there was no issue of religious freedom involved. It was all a mistake.

 

[162] The second difficulty I have with the defendants’ position is that it is valid only if the plaintiff’s decision to attend the December 29, 1989 meeting was truly an exercise of free will. The plaintiff says she was forced to attend the meeting by the elders whereas the defendants say she chose to attend. In my view this situation is directly analogous to one in which the defence of consent is asserted.

 

[163] In December 1989, Vicki Boer was a mentally competent adult person legally capable of making her own decisions. In the absence of factors traditionally seen as vitiating consent (such as force, threat of force, or fraud), she is presumed to have attended the December 29th meeting as an exercise of autonomy and free will. However, the analysis of whether there has been genuine consent on her part does not end there. To determine whether the consent is genuine, one must also consider the power relationship between the parties and in partricular whether one party had the power to dominate and influence the other. Norberg v. Wynrib [1992] 2 S.C.R. 226 at pp 246-261.

 

[164] In . Norberg v. Wynrib the defendant was the plaintiff’s doctor. Dr Wynrib was aware his patient was addicted to drugs. He offered to continue prescribing those drugs for her in exchange for sexual favours. At firstr she refused. However, after her other sources for obtaining the drugs dried up, she reeturned to Dr. Wynrib and agreed to his proposition. Years later she sued Dr. Wynrib, asserting, among other things, the tort of battery and breach of fiduciary duty. Dr. Wynrib argued that Ms. Norberg had consented to the sexual activity. At the Supreme Court of Canada, a panel of six judges all ruled in favour of Ms. Norberg for differing reasons. Two of the six judges (McLachlin and L’ Heureux-Dube JJ) decided the case based on breach of fiduciary duty without reference to the issue of the defence of consent or the tort of battery. Of the remaining four judges, three (LaForest, Gonthier and Cory, JJ) held that Dr. Wynrib’s conduct constituted battery. Refecting the defence of consent in the circumstances the sixth judge, Sopinka J, joind in Ms. Norberg’s favour based on breach of contract. Sopinka J considered the battery claim but was of the view that the defence of consent had been established on the facts. Thus three of the four judges dealing with the issue found there was no consent.

 

[165]LaForest J delivered the judgement of the three judges whose decision was based on the tort of battery. He first noted, at p 247 that the presumption of individual will and autonomy is “untenable in certain circumstances”. In particular, “a postion of relative weakness” can interfere with free choice. He therefore concluded that “Our notion of consent must be modified to appreciate the power relationship between the parties.” Having considered the parallels between this approach to consent and the concept of unconscionability of contract law, LaForest stated, at p 250:

 

It may be argued that an unconscionable transaction does not in fact vitiate consent: the weaker party retains the power to have real consent but the law nevertheless provides relief based on social policy. In the same way, in certain situations, principles of public policy will negate the legal effectiveness of consent in the context of sexual assault. In particular, in certain circumstances, consent will be considered legally ineffective if it can be shown that there was such a disparity in the relative positions of the parties that the weaker party was not in a position to choose freely. (Emphasis added.)

 

[166] LaFoarest J went on to consider the impact of special relationships, concluding that relationships where one party has power and authority over another are more likely to attract scrutiny in determining whether consent by the weaker party is genuine. He concluded that consent to a sexual relationship in such circumstances is inherently suspect, referring to an article by Professor Phyllis Coleman as follows at p. 255:

 

An ability to dominate and influence is not restricted to the student-teacher relationship. Professor Coleman outlines a number of situations which she calls “power dependency” relationships: see Coleman, Sex in Power Dependancy Relationships: Taking Unfair Advantage of the Fair Sex (1998), 53 Alb.L.Rev .95. Included in these relationships are parent-child, psychotherapist-patient, physician-patient, clergy-penitent , professor-student, attorney-client, and employer-employee. (Emphasis added).

 

[167] In applying these principles to the situatuion between Ms. Norberg and Dr. Wynrib, the three majority judges on this issue held that she had not freely consented to the sexual activity. In coming to that conclsuion, at p 257, LaForest J noted the “marked inequality in the respective power of rhe parties”, the fact that Ms. Norberg was a young woman with limited education, the fact that her need for drugs placed her in a vulnerable position, and the fact that this vulnerability was known to and exploited by Dr. Wynrib.

 

[168] Sopinka J disagreed with the conclusion reached by his three fellow judges and would have held on the facts that Ms. Norberg had consented to the sexual activity involved. He agreed that in determining the existence of factors tending to negate consent, it is necessary to take a “contextually sensitive approach”. This, he stated, should be done on a case-by-case basis rather than establishing catagories of relationships in which consent to sexual conduct would rarely be accepted as genuine. However, he stated at p. 304 “certain relationships, especially those in which there is a significant imbalance in power or those involving a high degree of trust and confidence, may require the trier of fact to be particularly careful in assessing the reality of consent.”

 

[169] Before returning to the application of these principles to the case before me, it is relevant to consider the observations of the trial judge in F.M.S. v. Clarke, supra , in particuar the excerpt I have quoted at paragraph [149] above. Dillon J was dealing at that point with the breadth of the duty of care to be imposed. However, the point made has equal application to a consideration of the relationship between the parties in the course of deciding whether there has been an exercise of free will. Dillon J noted the difference between a situation of “simple pastoral counselling as occurs within a parish”, and a totally closed society in which the religious influence is “pervasive” and “blind obedience” expected of the members. Those are useful distinctions to bear in mind in considering the situation of Vicki Boer and the elders of her faith.

 

[170] In my opinion, the power dependency relationship between Vicky Boer and the elders of the Jehovah’s Witness faith in 1989 was such that she cannot be said to have exercised free will in respect of directions given by the elders. Although she was legally of the age of majority, having turned nineteen in November 1989, Vicki Boer was a naive and unsophisticated young woman who had led a sheltered life to that point. Furthermore, it was a life dominated by the influence of the Jehova’s Witness faith. She had been forbidden to develop relationships with anyone outside the faith and had been trained to obey the elders without question. Up untill a few months before, she had lived at home with her family in a rigidly religious household and within a small community in which everything in her life centered on her religion. Refusal to follow the direction of the elders was not an option if she wished to stay within her religion; and abandoning her religion would also constitute an abandonment of her family, friends and communty at a time in her life when she was emotionally dependent and fragile. Disobeying the elders was literallly inconceivable to the plaintiff at the time.

 

[171] As I have noted above, the relationship between Ms. Boer and the Jehovah’s Witness elders was not as dependent as was the case with the children in the residential school in F.S.M v. Clarke, supra . However it was far closer to that sort of closed society than would be the case in the usual situation of a parishioner having regular contact with a clergy man but returning to home and the influence of others at other times. That is because of the pervasive nature of the Jehovah’s Witness religion’s presence in the everyday lives of its adherents the specific religious requirement of obedience, and the direction to avoid wordly ways and social interaction outside the faith.

 

[172] The plaintiff’s dependence and powerlessness developed as a direct result of the teachings of the defendant Watch Tower. She was brought up in that faith to accept the word of the elders unquestioningly. Independent thought was not permitted. She was taught not to trust anyone outside the faith and she followed that direction. Thus, when her employers noticed her distress in December 1989 and asked if they could help, she rebuffed their efforts, insisting that only somebody within her religion could help her. The elders were, therefore, not only aware of her dependence and vulnerability, they were responsible for it.

 

[173] In my view there is a direct parallel between the relationship between the doctor and patient in Norberg v. Wynrib, supra , and the relationship between tae elders of the Jehovah’s Witness and Ms. Boer. Certainly the conduct of Dr. Wynrib was more represehsible than anything done by the defendants here and the element of exploitation of the relationship for personal advantage by Dr. Wynrib is missing in this case. On the other hand, the degree of control that the Jehovah’s Witness elders were able to exert over Ms. Boer was, if anything, more ingrained and pervasive than was the case for Dr. Wynrib. In both cases the powerful party was aware of the dependency and involved in its continuation: the Jehovah’s Witnesses as part of their religious belief system and Dr.Wynrib because he took no steps to cure his patient’s addiction.

 

[174] The defendants called evidence on this point from Dr. Daniel Silver, a psychiatrist who examined the plaintiff at the request of defence counsel. He testified that the plaintiff at the age of nineteen was not submissive or passive. Rather, he described her as strong- willed and rebellious. From my earlier conclusions about the plaintiff’s relationship to the Jehovah’s Witnesses, it follows that I do not accept the evidence of Dr. Silver on this point. Dr. Silver’s opinion was based on what he thought to be the plaintiff’s behaviour at the time. However, the instances of rebellious behaviour he noted were all incidents that occurred after February 1990, after the time when she had begun to feel abandoned and mistreated by her own religion. He was also under the incorrect impression that the tensions between Ms. Boer and the church had been going on for some time before December 1989. Nobody who knew Ms. Boer in December 1989, described her as rebellious. Those who knew her, including some of the defendants, described her as committed to her religion and as a quiet, somewhat shy young woman. Dr. Silver’s opinion that the plaintiff was not forced to participate in the two meetings but rather chose to do so is based on a mistaken apprehension of the facts and therefore I do not find it to be persuasive

 

[175] Accordingly I conclude that holding the defendants to a duty of care in this situatuion does not interfere with their religious freedom. Further, by attending the meeting on December 29, 1989, the plaintiff was not truly exercising a free choice to follow her religion and is not therefore prevented from asserting this cause of action.

 

(d) Standard of Care and Breach

 

[176] There was no evidence of the particular standard of care applicable to elders of the Jehovah’s Witness faith in this community at the relevant time. I agree with the defendants’ submission that the standard of care applicable to psychiatrists, psychologists, or social workers is not the appropriate standard against which to measure the conduct of the elders. In the absence of specific evidence as to the standard, it is appropriate to apply the general standard of care for negligence, that of a reasonable person in like circumstances. The elders in this situation had no particular expertise dealing with victims of childhood sexual abuse. They cannot be expected to be familiar with the literture on how to handle disclosure of abuse by vulnerable victims. However, as a matter of the general knowledge any person in the community would be expected to have in 1989, the defendants must have known that being a victim of sexual abuse is traumatic and for any such victim to confront her abuser about such conduct in front of others would also likely be emotionally difficult. It was reasonably foreseeable that such a confrontation could be emotionally harmful to the plaintiff.

 

[177] The particular elders involved in counselling Ms. Boer also had specific information about her emotional circumstances. They knew she was already beginning to have emotional problems arising from her father’ abuse and they knew, because she specifically told them,that she was terrified about having to confront her father in the manner they directed. Fixed with that knowledge, and aware of their own lack of expertise, it was incumbent upon the elders to make inquiries of a professional as to how the potential harm to the plaintiff could be minimized, if not avoided entirely. In my opinion failure to take this very basic precaution was a breach of the standard of care. Further, the elders in Toronto could at least have warned the elders in Shelburne of the nature of the situation and the vulnerability of Ms. Boer so that an attempt could be made to minimize the risk of harm to the plaintiff. Instead they took no steps whatsoever to speak with their Shelburne counterparts, with the result that Messrs. Cairns and Brown walked into the meeting blind, unaware of what would be discussed and unaware of the plaintiff’s emotional difficulty . Again in my view, this falls below the appropriate standard of care. Had the Shelburne elders been aware of the situation, it is likely they would have heard from the plaintiff in the absence of her father just as they had done for the January 31, 1990 meeting. Furher, given that the advice with respect to Matthew 18 was incorrect, there is a good chance this could have been avoided altogether if there had been better communication between the two groups of elders.

 

[178] Accordingly I find that the plaintiff was obliged to go through the difficult and traumatic experience of confronting her father about his past sexual abuse in front of her father and two elders of the community. Although the plaintiff knew this confrontation would be harmful to her, she felt she had no choice but to comply. Further, because of her religious upbringing and the requirements of her religion , she was powerless and dependent upon the elders. She cannot be regarded as having chosen of her own free will to attend the meeting. She attended the meeting due to the incorrect advice given to her by the elders in Toronto as to the requirements of her faith. Further, although the Totonto elders were aware this experience would likely be traumatic for her, they failed to take reasonable steps to avoid that harm, such as obtaining competent expert advice or,at the very least, advising the elders in Shelburne of the situation they would be facing. Had they taken these reasonable steps, the harm to the plaintiff arising fron the December 29, 1989 meeting would likely have been averted. I therefore find that the requisite elements for a cause of action in negligence are established. The next question is which, if any, of the defendants are liable for damages arising from the negligence that caused the plaintiff to attend the December 29, 1989 meeting.

 

 

(e) The Individual Defendants

 

[179] The defendants Steve Brown and Brian Cairns were completely unaware of the subject matter of the December 2,9 2989 meeting prior to actually hearing it from Mr. Palmer and the plaintiff. They heard from the family members present, made some inquiries to satisfy themselves that the younger children were not in danger, and told the Palmers they would get back to them about what needed to be done. Neither Mr. Brown nor Mr. Cairns was responsible for the structure of the meeting. They had no knowledge that Matthew 18 was being applied. The plaintiff did not tell them that she did not want to be there and she did not ask, nor attempt, to leave. Under these circumstances neither Mr. Brown nor Mr. Cairns is responsible for any harm suffered by the plaintiff as a result of the meeting. I have already determined that there is no liability arising from any of their conduct subsquent to the December 29 meeting.

 

[180] John Didur is a personal dedendant. He testified at trial that Matthew 18: 15-18 has no application to this type of situatuion and that he would never have told this to Sheldon Longworth. Mr. Longworth’s notes of one of his conversations with Mr. Didur indicate that Mr. Didur told him that Matthew 18 applied. It is also apparent from his notes that Mr. Longworth spoke to other advisers at head office and that at least one other elder told him Matthew 18 applied. Mr. Longworth’s specific memory of which elders provided which advice is not reliable, as he candidly acknowledged in his testimony. It is possible Mr. Didur gave such advice without fully appreciating the background circumstances. It is also possible Mr. Longworth was confused about the advice he received from Mr. Didur or that he inaccurately recorded the discussion as having been with Mr. Didur when it was in fact with someone else. I found Mr. Didur to be a convincing witness. I am not able to say on a balance of probabilities that he was the one who told Mr. Longworth to apply Matthew 18: 15-18. Therefore he is not personally liable in damages to the plaintiff in respect of the December 29, 1989 meeting.

 

( 1 ) The Defendant Watchtower Bible and Tract Society of Canada

 

[181] Sheldon Longworth is not named as a personal defendant. However, Ms Boer contacted Mr . Longworth in his capacity as an elder of the church. Mr. Longworth consulted throughout with more senior advisers at the Jehovah’s Witness head office and passed on their advice to the plaintiff. He acted at all times as an agent of the defendant Watch Tower. The defendant Watch Tower did not seek to distance itself from the conduct of Longworth and the other elders who provided advice to Ms. Boer in Toronto or to disclaim any responsibility for their actions. Although the statement of claimcould be clearer on this point, I believe that on a fair reading of the pleading and subsesquently delivered particulars, there is an allegation that Watch Tower is responsible for the harm suffered by the plaintiff as a result of the direction given to her to apply Matthew 18:15-18. Accordingly I find the defendant Watch Tower Bible and Tract Society of Canada liable to the plaintiff for the harm she sustained as a result of attending the Decemer 29, 1989 meeting.

 

( v) Analysis: The January 31 1990, Committee Meeting

 

[182] The January 31, 1990 Judicial Committee meeting was called to consider the appropriate sanctions, if any, to be imposed upon Mr. Palmer for his transgressions. The decision as to whether a committee was appropriate is not something this court should interfere with. This is akin to a quasi-judicial function. No duty of care would be owed to Ms. Boer in connection with the decision itself. However, the manner in which the meeting was conducted could potentially give rise to a duty of care since Ms. Boer was dirctly involved and there was a reasonable expectation of the part of the three commitee members that she would find the meeting emotionally difficult. However, in my view the three committee members acted reasonably in the manner in which they conducted the Judicial Committee meeting. They were careful to ensure the plaintiff felt she was being listened to and believed, and they met separately with plaintiff to hear her story so as to spare her the difficulty of going over the details in ront of her father. I find no breach of any duty o; care bh the defendants in connection with the Judicial Committee meeting and hence no liability agaisnt any of the defendatns arising from it.

 

( vi) Analysis: The Church’s Handling of Mr. Palmer’s Abuse and Events After January 1990

 

[183] Having heard the particulars of Mr. Palmers conduct and considered the applicable Scriptures, the three elders who constituted the Judicial Committee that had been struck to consider the matter made a decision as to what they thought was an appropriate sanction. In coming to that decision they considered and applied what they believed to be the principles of their faith. There is no evidence that any of the defendants communicated the circumstances of the situation inappropriately to others. They took no steps directly against the plaintiff and were not responsible directly or indirectly for gossip in the community or for any actual or perceived shunning of thte plaintiff by members of the congregation. The discipline by a church of one of it own members is an area upon which courts are very reluctant to intrude. That is particularly so when as here the plaintiff was not the one being disciplined and alleged only indirect harm. In my opinion neither the elders nor the church owed a duty of care to the plaintiff in these circumstances. The nature of the discipline to be imposed on Mr. Palmer was purely a matter between the church officials and Mr. Palmer. The plaintiff had no privity and was owed no duty. Further, there was no reasonable expectation that she would be harmed by any sanction imposed on Mr. Palmer. Even if there was a duty owed there was no breach by any of the defendants that could be said to cause damage to Ms. Boer. Therefore, there is no liibtity on any defendant for anything that happened after the January 31, 1990 Judicial Committee meeting.

 

K. DAMAGES

 

[184] It follows from the above that the only harm suffered by the plaintiff for which any defendant is in law responsible is the harm arising from her participation in the December 29, 1989 meeting. The only defendant liable in damages for that harm is Watch Tower Bible and Tract Society of Canada. The final question to be determined is the quantum of the plaintiffs damages.

 

 

[185] The plaintiff relies upon the evidence of Dr. George Awad, a psychiatrist. He is not a treating psychiatrist but examined the plaintiff at the request of her counsel for the purposes of this litigation. Dr. Awad testified Ms. Boer suffers from a generalized anxiety disorder, which is long term and will require many years of psychotherapy to treat. He noted she has many of the symptoms of survivors of childhood sexual abuse and agreed many of her symptoms stem directly from the trauma of being sexually assaulted by her father. However, Dr. Awad placed great emphasis on the manner in which the Jehovah’s Witness elders handled the situation once the abuse was reported to them. He described them as being “insensitive” from the outset and said that the way the church handled the matter was a factor preventing her recovery from the initial trauma of her father’s abuse. Further, he specificaly referred to the requirement of her confronting her father in front of the elders and other forced repetitions of her story and said this exacerbated the original trauma with effecfts even more severe than the sexual abuse itself.

 

 

 

[186] The plaintiff also filed reports from several health care professionals who she has seen for treatment for brief periods over the intervening years. These included a one page letter from a counselor, Russell Scott, who saw Ms. Boer for a 1 1/2 hour counselling session in October 1997. In the letter Mr. Scott confirmed his advice to Ms. Boer that some of her dificulties “may be related to the fact she was raised in a cult environment” Mr. Scott further stated that the strategy of requiring Ms. Boer to confront her father in front of the elders caused far reaching emotional damage and was re-traumatizing. Dr. Helene Daigle, a psycholgist who saw the plaintiff for treatment in January 1998, described her as suffering from symptoms of “excessive anxiety, lack of trust in others and herself and confusion”. She stated that Ms. Boer would have benefitted from getting professional help when she revealed the abuse and this could have spared her years of excessive guilt, fear, and confusion.

 

[187]The diagnosis of the plaintiff’s current psychological difficulties by the defence expert, Dr. Silver, is remarkably similar in many respects to the opinions of the experts relied upon by the plaintiff. He agreed that she suffers from anxiety and many symptoms of post traumatic stress. He was further of the view that she struggles with a personality disorder which includeds attempts to avoid real or imagined abandonment, difficult interpersonal relationships, feelings of emptiness, and impulsivity. Where Dr. Silver differed significantly with Dr. Awad is in respect of the cause of the plaintiff’s psychological difficulties. He accepted that it was emotionally difficult for the plaintiff to go through the December 29, 1989 meeting and confront her father about his abuse. However, in his opinion the sexual abuse by her father when the plaintiff was at a most vulnerable adolescent age was the most important causal event leading to her later emotional difficulties. Dr Silver also referred to other sources of the plaintaiff’s anxiety, such as failed roamantic relationships, her difficulties with her mother difficulties arising from her split with her religion, and loneliness as a young wife and mother with her husband away for extended periods of time. Dr. Silver agreed that the processs of confronting her father would likely have caused the plainifff grief and anxiety and would have re-evoked the trauma of the original abuse. However, he also testified that the plaintiff was very strong-willed and that if she found the experience of repeating her story to be really traumatic, she could not have been “dragged” to the meeting. He testified that she unconscioulsy needed to repeat the original abusive trauma sufferd as a result of her father’s abuse by repeating her story over and over. Dr. Silver disagreed strongly with Dr Awad’s opinion that the trauma of the December 29, 1989 confrontation meeting was worse than the origianl sexual abuse. Dr. Silver testified that the impact of the confrontation was negliglible or insignificanat when compared to the horrendous trauma of the original sexual abuse. He said it was like comparing a malignant tumour to a benign boil.

 

[188] Dr. Silver testified that the plaintiff appeared to feel a great deal of rage towards her father which he found to be understandable. However, she aslo demonstrated a desire to preserve her own good image of her parents. Dr. Silver believes the plaintiff had displaced her rage against her father by directing it against the Church; that she has a need to split things into good and bad with her parents perceived as good and the Church as bad.

 

189] As I have already noted above (at paragraph 176) I do not accept Dr. Silver’s opinion with respect to the plaintiff being strong-willed and rebellious in 1989. His conclusion in that regard is based on a misapprehension of some of the evidence. To the extent his conclusions as to the minimal traumatic impact of the Decemer 29, 1989 meeting are influenced by his belief that the plaintiff attended that meeting willingly, his opinion must be looked at critically and carefully. However, I found the balance of Dr. Silver’s evidence to be even-handed and thoughtful.

 

[190] Dr. Awad’s evidence must also be considered carefully because it is premised on the accuracy of the plaintiff’s evidence as to how the events of December 1989 and January 1990 transpired. As I have stated above, many of the plaintiff’s beliefs as to the way in which she was treated by the elders are inaccurate. Dr. Awad understandably accepted the accuracy of the plaintiff’s recollection for the purpose of reaching his opinion. The inaccuracy of the factual underpinning for his opinion seriously undermines its weight. Further, I found Dr. Awad to be almost adversarial in his support for the plaintiff’s cause during the course of his testimony. In his written report delivered in August 1999, Dr. Awad described the elders as being hostile, unfeeling, and judgemental. His report recognizes the trauma of the original abuse and its likelihood of longtime sequalae. He describes the confrontation meeting and the forced re-telling of the plaintiff’s staory as re-traumatizing and says it “made the situation worse”(page 11) and that “the way this case was handled increased the anguish and suffering that Mrs. Boer experienced” (page 12).

 

[191] At trial Dr. Awad went considerably further. In examination in chief, Dr. Awad stated that Ms. Boer’s current anxiety stems from earlier trauma in part because of the sexual abuse but “mostly” because of the way it was handled by the elders. On cross-examination, Dr. Awad stated at one point that it was a “toss up” as to which was more traumatic, the original sexual abuse or the way it was handled by the elders, but that if he had to choose he woulds say the Church’s handling of the matter was worse than the original trauma. Later he said that although the plaintiff was upset by the sexual abuse he was not sure she was psychiatrically disturbed by it. According to him it was the re-traumatizatian by the elders that did the real damage.

 

[192] As I have already noted there are difficulties with the evidence of both experts who testified. However, I found the evidence of Dr. Silver to be more balanced and impartrial than that of Dr. Awad. I accept Dr. Silver’s opinion that Dr. Awad failed to give sufficient weight to the obvious trauma caused by the sexual abuse. Ms. Boer had already started to experience disturbing symptoms stemming from her father’s abuse before the elders were even involved. Many of her symptoms in later life were clearly related to the original abuse; for example, concerns about bathing her children and hearing her husbands breathing during the night and having flashbacks to her father’s abuse. The long term traumatic effects of sexual abuse are well documented and well known. While I do not doubt that the experience of having to recount the deatails of the abuse in front of her father was traumatic, it stretches credulity to suggest that the long- term effects of such a confrontation are worse than the original abuse.

 

[193] I accept the evidence of Dr. Silver that by far the most significant factor contributing to the plaintiff’s current difficulties is the sexual abuse by her father. I also accept his opinion that the plaintiff’s fous on the Church as the source of her problems is likely based on her need to displace her rage against her parents. It is important to note the role of the plaintiff’s mother in all of this. The plaintiff was cerainly betrayed by her father. However, her mother was suspicious that her husbnd was abusing the plaintiff but said nothing. When the plaintiff went to her about it she did intervene but the matter was hushed up and Mrs. Palmer told her daughter not to tempt her father by dressing provocatively or wearing pymamas in his presence. Mrs. Palmer was angry with the plaintiff for bringing the matter up again in 1989 as she felt it was over and done with. Later when the plaintiff left the Church there was further ill will between mother and daughter and as the plaintiff poignantly stated in her evidence “My mother died hating me”. Mrs. Palmer chose her allegiance to her faith over her daughter. It is clear from all of the evidence that this betrayal by her mother has also been a factor contributing to the plaintiffs emotional difficulties.

 

[194] That said, I believe Dr. Silver minimized the impact of the confrontation meeting. I accept the evidenvce of Dr. Awad that this would have been re-traumatizing. I do not see it as being as inconsequential as Dr. Silver described. I believe athe confrontation meeting was extraordinarily difficult at the time and likely made matters worse for the plaintiff for a period of time after that. However with or without the December 29, 1989 meeting I believe the plaintiff would have been in the same psychologically damaged state now. There were many factors compounding the plaintiff’s inability to recover fully from the sexual abuse. Those factors included the lack of support from her family, particularly her mother, and the very sheltered judgmental environment in which she had been raised. It is not easy for any person simply to break away from a religious group that has been such a pervasive influence in all aspects of one’s life. For a person with the vulnerabilities of the plaintifff and already damaged by the sexual abuse that struggle was even more difficult. I recognize that to an extent the difficulties the plaintiff now experiences are related to her upbringing within the Jehovah’s Witness faith and the effects of leaving that faith. However, those are not actionable sources of harm. The only cause of action against the Church is in respect of its negligence in causing the plaintiff’s attendance at the December 29, 1989 meeting. In my opinion that one session, while traumatic, played only a minor role in creating the situation in which the plaintiff now finds herself.

 

[195] At the time of the incident giving rise to this cause of action, the plaintiff had already suffered the initial harm from the sexual abuse and was alreadly suffering from its sequelae. Her current emotional difficulties stemming from the sexual abuse would have occurred in any event as would most of the other difficulties arising from leaving the Church. In my opinion, this case falls within what has been described as the “crumbling skull”: Athey v Leanati , [1996] 3 S.C.R. 458; W.R.B. v. Plint (2001) 93 B.C.L.R. (3d) 228 (B.C.S.C.) S.F.P. v. Macdonald (1999) 234 A.R. 273 (Q.B.); Whitfield v Calhoun (1999) 242 A.R. 201 (Q.B.).

 

[196] Therefore, Watch Tower is not liable in damages for the whole of the plaintiff’s current psychological problems. Further, the plaintiff would have required psychological treatment for the other sources of her difficulties in any event and I do not see the sequelae of the December 29, 1989 meeting as requiring additional or more prolonged treatment than would otherwise have been the case. There was, however, psychological harm to the plaintiff as a result of the December 29, 1989 meeting. She was in a very vulnerable state at the time as she had just begun to deal with the effects of her father’s abuse. I accept the evidence of the various experts, including Dr. Awad, that this confrontation made things worse for the plaintiff. I am not able to say in hindsight how long those effects would have been felt. Putting a dollar figure on psychological harm is always a nearly impossible task and one which is inherently arbirary. I am mindful of the range of damges typically awarded to victims of severe childhood incest and physical assault where the long term psychological harm is significantly more disabling than in the plaintiff’s situation. Damages in those most horrific cases range from $75,000.00 to $150,000.00. Taking all of those factors into account I assess general damages suffered by the plaintiff in this case at $5,000.00.

 

[197] There is no foundation on the facts to support an award for punitive danages. Most of the allegations against the defendants have not been established on the facts. The defendants who interacted with the plaintiff did not bear ill will toward her. They accepted the veracity of her account, were sympathetic to her situation and meant her no harm. The claim for punitive damges is dismissed.

 

L. JUDGEMENT AND COSTS

[198] In the result there will be judgement in favor of the plaintiff in the amount of $5,000.00 as against the defendant Watch Tower BiBle and Tract Society of Canada plus interest thereon at the Courts of Justice Act rate from August 28, 1998. The action is dismissed as against the other defendants. If the parties cannot agree on costs I can be spoken to.

 

Released June 26, 2003

Molloy J

 

 

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