Ontario’s highest court has sent a message that institutions that cover up sexual abuse of children should not look to judges for protection, when angry civil juries award damages in lawsuits.
The Ontario Court of Appeal unanimously upheld a $500,000 award on Friday for punitive damages against a Roman Catholic order, part of a total award of $2,570,000, in the prolonged abuse of a schoolboy in the 1960s. The punitive damages portion of the award is the largest awarded against the Catholic Church in Canadian history for child sexual abuse within its walls; the judge who initially heard the case said $225,000 would be a reasonable amount. The previous high was just $7,500.
Punitive damages are reserved for shocking conduct in exceptional cases. "It means a huge deterrent for any institution that even thinks in this day and age about trying to cover something up,” said Rob Talach, a member of the legal team of Rod MacLeod, who brought the lawsuit against the Basilian Fathers.
The court also made clear that the standard for assessing financial damages – the cost to an individual’s career – is not onerous. The abuse victim who brings the lawsuit needs only prove a “real and substantial” possibility of what their career would have been like if they hadn’t been abused. The estimate doesn’t have to be more likely than not.
Mr. MacLeod was sexually abused more than 50 times by William Hodgson Marshall, a member of the Basilian Fathers (a Catholic order of priests) between 1963 and 1967. He was a student at St. Charles College high school in Sudbury and Father Marshall was a gym teacher and priest.
The Basilians were aware that Father Marshall abused boys before they ordained him, the court said. He taught for nearly 40 years, and the Basilians moved him when they received sexual abuse complaints. Previously, he pleaded guilty to sexually abusing 17 minors, was sentenced to two years in jail, and died at 92 in 2014.
“The damages awarded were not so excessive as to call for the intervention of this court,” Justice Julie Thorburn wrote in reference to the punitive damages award.
The jury had been given five scenarios setting out how much more income Mr. MacLeod might have earned over his career, from a low of $1,036,000 (if he retired as a major in the army in 1992), to a high of $1,786,000 (if he earned the average of the civilian work force in Ontario from the time he graduated from university). Mr. MacLeod was a respected captain in the army but quit because his commanding officer reminded him of his abuser, and afterward worked as a financial adviser and physiotherapist. The jury settled on $1.588-million. It also awarded roughly $500,000 more in other damages and for treatment costs.
The court ruling “means vindication, without question,” Mr. MacLeod, now 69, said in an interview.
Most victims who sue tend to settle quietly because they don’t have the strength or the means for a long legal battle, Mr. MacLeod said.
Church leaders, he said, “have no interest whatsoever in the victims. ... So they come with a chequebook and pay a relatively small amount to have the cloak of silence pulled down over this behaviour of theirs. Finally we have an open trial where the jury was able to see and hear everything that was going on. We’ll never solve this problem of sexual abuse by being silent, by not talking about it.”
The Basilian Fathers had argued that the $500,000 award was unreasonable. They also said the judge who conducted the civil trial gave incorrect instructions to the jury on damages for career losses. Mr. MacLeod should have demonstrated what his career would have been like to a standard of “reasonable probability” – that is, at least a 50.1-per-cent chance.
Rev. David Katulski, a spokesman for the Basilian Fathers, declined to comment, or to say whether they would appeal.
The six-member jury had made clear its strong feelings about the conduct of the Basilian Fathers, justifying the punitive damages award by writing: "Concealment: Silent shuffle undertaken to divert ... avoiding scandal, neglected to document offences. Put children in harm’s way – grossly negligent.”