IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111110

Docket: 07-1807

Registry:
Victoria

Between:

Joy Corfield

Plaintiff

And

Phil Shaw and Ian
Baker and Baker Industries Ltd.

Defendants

Before:
The Honourable Mr. Justice Butler

Reasons for Judgment

[1]            
At the suggestion of her employer, Joy Corfield decided to leave work at
the local laundromat and learn a trade.  She took an introductory plumbing
course at Malaspina College and started working at Baker Industries Ltd.
(“Baker Industries”), a small family plumbing business.  Initially, she worked
as an unpaid “job-shadow” with a journeyman plumber, but was soon hired as an
apprentice.  Her employment at Baker Industries lasted for less than a year. 
She says that her supervisor, Phil Shaw, sexually assaulted her on a number of
occasions in 2005 while they were working together (the “Assaults”).  Shortly
after revealing this to Ian Baker, the owner of Baker Industries and stepfather
of Mr. Shaw, she quit and eventually commenced this action.  She says that
since the Assaults, she has suffered severe emotional distress.

[2]            
Mr. Shaw says he never sexually assaulted Ms. Corfield.  He admits that
he worked with Ms. Corfield at the job sites where she says the Assaults occurred
but denies that the alleged incidents took place as she described, or at all.  The
defendants say they first learned of the allegations of sexual assault when the
writ of summons was issued approximately one and a half years after Ms.
Corfield left Baker Industries.  They say the only complaint Ms. Corfield made
when she quit was that Mr. Shaw acted inappropriately, and that Baker
Industries dealt with that complaint in an appropriate manner at the time.

[3]            
There were no witnesses to the Assaults.  The evidence of Ms. Corfield
and Mr. Shaw about the allegations is entirely at odds.  There is no middle
ground; one of them is not telling the truth.  As Justice Rothstein noted at
para. 81 in F.H. v. McDougall, [2008] 3 S.C.R. 41 [McDougall],
this places the court in a difficult position:

Trial judges faced with
allegations of sexual assault may find that they are required to make a
decision on the basis of whether they believe the plaintiff or the defendant
and as difficult as that may be, they are required to assess the evidence and
make their determination without imposing a legal requirement for
corroboration.

[4]            
While the task facing a trial judge is difficult, the standard of proof
and the proper approach to determining liability is the same in cases of sexual
assault as it is in all civil cases.  The standard of proof is not elevated
because the plaintiff has alleged morally blameworthy conduct on the part of
the defendant.  Rothstein J. concluded at para. 49 in McDougall:

In the result, I would reaffirm
that in civil cases there is only one standard of proof and that is proof on a
balance of probabilities. In all civil cases, the trial judge must scrutinize
the relevant evidence with care to determine whether it is more likely than not
that an alleged event occurred.

[5]            
As Rothstein J. noted at para. 46, the evidence required to satisfy
the standard of proof must be clear, convincing and cogent:

Similarly, evidence must always
be sufficiently clear, convincing and cogent to satisfy the balance of probabilities
test. But again, there is no objective standard to measure sufficiency.

[6]            
Having scrutinized the evidence with care, I conclude Ms. Corfield has
proved on a balance of probabilities that Mr. Shaw assaulted her as alleged on
nine occasions while they worked together.  My reasons for arriving at this
conclusion and for my assessment of the damages to which she is entitled are
set out below, as are my conclusions regarding the liability of Mr. Baker and
Baker Industries.  The issues I have considered are:

1.       Did Mr. Shaw assault
Ms. Corfield?

2.       Is either or both of
Mr. Baker and Baker Industries directly liable for the Assaults?

3.       Is Baker Industries
vicariously liable for the Assaults?

4.       What damages should be
awarded to Ms. Corfield?

Issue 1.        Did Mr. Shaw assault Ms. Corfield?

[7]            
I begin my examination of this issue by summarizing the evidence of Ms.
Corfield and Mr. Shaw regarding the Assaults.  Ms. Corfield described each of
the Assaults in some detail.  In spite of being examined for discovery for two
days and testifying at trial for more than two days, she was consistent in her
description of the Assaults.  Mr. Shaw did not describe the events that
occurred at the various job sites in any detail but consistently denied the Assaults.

[8]            
Following the summary of their evidence, I consider Mr. Shaw’s arguments
challenging Ms. Corfield’s credibility and, in the course of doing so, explain
why I have accepted her evidence regarding the Assaults.

Ms. Corfield’s Evidence

[9]            
Ms. Corfield described 12 incidents.  Three of them did not involve
assaults.  She described the nine incidents of assault in chronological order,
although she could not recall the dates of the incidents.  The Assaults
occurred between May and late November of 2005.  Most of the Assaults happened
later in that time period.  This is because Ms. Corfield was assigned to work
with Mr. Shaw more frequently as time went by.  Mr. Shaw was responsible for
handing out the job assignments at Baker Industries.  She said that by the
later part of her tenure she worked with him frequently.  It seemed to her that
she was always assigned to jobs with him.

[10]        
The Assaults occurred at the following locations:

Incident #1 – 2nd St.

Ms. Corfield was assigned to a
small house to fix a broken toilet flange.  She was unable to do so and called
Mr. Shaw for assistance.  He came to the residence while she was working and
explained the steps required to accomplish the repair.  She completed the
repair and was on her knees in front of the toilet while tightening the T-bolts. 
Suddenly, and without warning, Mr. Shaw put his hands over her breasts from
behind.  She was stunned at what happened as it could not have been an
accident.  She left in her van in a hurry.

Incident #2 – Maple Bay Rd.

This was similar to the first
incident.  It was at a large house where she was doing a toilet repair.  She
was not able to remove the tank.  She called and asked Mr. Shaw for
assistance.  He told her to try to drill the old bolts.  She was doing this
when Mr. Shaw arrived and again grabbed her breasts from behind her. 
Immediately after he did that, the owner of the house came in.  She was
startled and froze.  She does not recall how the embarrassing situation ended.

Incident #3 – Sherman Rd.

This was a multi-residential
new construction project where Baker Industries was doing all of the finishing
plumbing.  The incident occurred in unit 16 or 17.  Ms. Corfield was lying on
her back working on a sink.  Mr. Shaw came into the room and commented on her
looks.  He said she was supporting a nice body.  He put his hand on her chest. 
She froze and held her breath until he left the room.

Incident #4 – Nitnat

Baker Industries had a contract
to do repairs to the plumbing at the First Nations reserve.  The reserve is a
two hour drive from Duncan.  Ms. Corfield and Mr. Shaw drove out in his van and
performed the repairs.  On the way back, in the vicinity of the town of
Sahtlam, his cell phone rang.  He pulled the van off the road.  After he hung
up he did some paperwork and then approached Ms. Corfield’s side of the car. 
He opened the door and grabbed her legs.  She resisted and tried to turn into
the van.  He persisted and climbed in after her.  He touched her all over
including her breasts, buttocks and legs.  He moaned and said that he wanted to
have sex with her.  She attempted to push him off.  She shook her head and said
no.  She distinctly recalls what he smelled like and how he moaned.  Eventually
he stopped and drove the rest of the way back to Duncan.  It was during this
drive that Ms. Corfield told Mr. Shaw that she had been sexually abused by her
own stepfather (the “Childhood Abuse”).  She told Mr. Shaw this was bringing
back those difficult memories.

Incident #5 – Drinks with Bill Elder

After working together, Ms.
Corfield and Mr. Shaw went to a bar to have drinks with Bill Elder, one of the
other plumbers working for Baker Industries.  When they left the bar, Mr. Elder
departed and Mr. Shaw drove Ms. Corfield to the location where she left her van
earlier in the day.  When she tried to get into her own van, Mr. Shaw prevented
her from closing the door.  He said he wanted to have sex with her.  She said no
and told him she wanted to go home.  He grabbed one of her arms and held it
behind her and pushed his body towards her.  She was fighting and pushing him
away.  She twisted and tried to get into her van.  He continued to hold on to
her arm which was behind her and she ended up facing the interior of the van. 
Mr. Shaw pressed his body against her from behind.  She could feel his erection
through both of their clothing.  He was excited as he pushed himself against
her.  He was touching or rubbing her neck.  Eventually she got into her van. 
Her arm was sore and she was trembling and very upset.  She drove home,
showered and cried.

Incident #6 – Cowichan River Park

After completing a plumbing job
with Ms. Corfield, Mr. Shaw drove towards Duncan on back roads past the
Cowichan River Park.  He stopped at the park and they got out of the vehicle to
look at the river.  After they got back into the van he reached over to touch
her.  She turned away with her back to him.  He continued to touch her and held
her arms to restrain her.  She struggled and tried to push him but could not
get away.  He touched her legs and chest and put his hand up her shirt.  He
pushed his body against her.  As he got more excited he became rougher.  He was
mumbling and moaning.  Ms. Corfield closed her eyes and tried to put her mind
somewhere else.  He eventually climbed off her and drove back to Duncan.  She
does not remember the rest of the drive.

Incident #7 – McNeil Rd.

This incident occurred at a
four-unit new construction project.  Ms. Corfield and Mr. Shaw were working on
the plumbing installation in the crawl space.  She was working on a water line
when he put his hands on her chest.  It happened suddenly and unexpectedly. 
That was the extent of the assault.  Ms. Corfield also described an incident at
the same job where Mr. Shaw angrily threw a piece of pipe across the space in
which they were working.  He had a real temper.  It was not unusual for him to
hit his steering wheel angrily or to throw his tools into the van.  He often
criticized his wife and said that Ms. Corfield’s boyfriend was no good for her.

Incident #8 – at Mr. Shaw’s residence

After work one evening, Mr.
Shaw called Ms. Corfield and asked her to bring him his note pad which he had
left in her van.  She offered to bring it the next morning but he insisted she
bring it over as he needed it for work he was doing.  She complied and helped
him with the paperwork he was doing at his home.  They each had a Mike’s Hard
Lemonade while working.  As she got up to leave, he approached her and put his
arms around her and got her down on the floor.  She got up and tried to leave
but he cornered her by the door to his bedroom.  She grabbed onto the door frame
so she wouldn’t be taken into the bedroom but could not fight him off.  He got
her down on the floor with her head under the edge of the bed.  He touched her
all over her body.  He lay on top of her and thrust his body against her.  He
tried to take her clothes off but she resisted.  She kept saying she wanted to
go home.  Again, she says her mind shut off and went elsewhere.  Eventually he
stopped, but she did not describe how that occurred.  She went home, showered
and locked herself in the bathroom until she could face the rest of the
evening.

Incident # 9 – Wilson Rd. Pump house

Ms. Corfield told Mr. Shaw that
she wanted to get some experience with well systems.  This job came up late in
the afternoon.  As they were driving to the pump house in separate vans, he
stopped at a liquor store and bought a six-pack of beer.  When he did this, Ms.
Corfield told him that she did not want to go to the job.  However, he gave her
a look that terrified her and he smashed his hand against the van.  She decided
she had to go to the job.  She recalls seeing rats and a mattress in the pump
house.  She tried to stay away from him as they worked but he soon grabbed hold
of her and restrained her arms.  He pushed her up against the wall of the pump
house and thrust his body against hers.  He fumbled with her clothing and
slammed himself against her.  He tried to kiss her.  Although they were still
clothed, she could feel his erection against her.  She closed her eyes and was
very concerned about whether Mr. Shaw would carry on with the assault.  She was
very frightened.  He eventually stopped and she left in her van and drove
home.  She was bruised on her back as a result of being thrust against the
wall.  This was the last incident.

[11]        
She also described three incidents that did not involve an assault.  One
of these occurred at Aros Road.  Mr. Shaw became angry, swore and struck the
steering wheel of the van.  Ms. Corfield was quite upset by his behaviour and
asked to be taken home.  The second incident took place one evening at Mr.
Shaw’s residence.  She went to his home at his suggestion in order to clean out
her van.  In the course of that evening they consumed quite a bit of alcohol. 
At one point Mr. Shaw became angry and tried to grab Ms. Corfield.  She
continued working in the van and managed to avoid him.  The third incident took
place at a job at a pump house.  It was a small cramped space and he cornered
her.  She managed to get past him to the compressor and indicated she didn’t
want him to touch her.  She used a number of different strategies to try to
tell him that she didn’t want him to touch her but they didn’t always work.

[12]        
After the various incidents took place, when Ms. Corfield and Mr. Shaw
next met at work they carried on as if nothing had happened.  They spoke to
each other and joked around as usual.  Observers would not expect that anything
unusual was going on between them.  At some point after the incident which
occurred following drinks at the pub with Bill Elder, she spoke to Mr. Shaw
about his behaviour and told him that it had to stop.  She explained that she
loved her boyfriend.  Mr. Shaw was upset and angry.  After that he treated Ms.
Corfield poorly and gave her the “cold shoulder”; he didn’t talk to her.  He
made her life miserable and made her work late.  She felt lost, frustrated,
confused and left out.

[13]        
Ms. Corfield did not tell her friends, family or anyone at work about
the Assaults.  She did not tell anyone because she thought she could handle it
herself.  She thought she could fix the situation by telling Mr. Shaw that she
was not interested in his advances.  She thought it would end if she kept
saying no and indicated by her actions that she did not want his attentions.  Ms.
Corfield was concerned that, as one of only a few young women working in a male
dominated industry, she could lose her job if she told people at work about the
Assaults. She also thought she would lose her relationship if her boyfriend
learned about them.  She thought she could lose everything.

[14]        
Ms. Corfield first told Mr. Baker about Mr. Shaw’s inappropriate
behaviour after the company Christmas party.  This occurred at a meeting
between Ms. Corfield, the Bakers and Mr. Elder.  Ms. Corfield testified that
this meeting took place a number of days after the Christmas party.  Mr. Elder
thought it was a week or more after the party.  The Bakers both said the
meeting occurred on the day after the party.  I need not decide with precision
when the meeting occurred.  There is no doubt that it must have been shortly
after the Christmas party because Ms. Corfield quit within a week of the
party.  It seems likely that the meeting took place on either the Monday or
Tuesday after the Christmas party.

[15]        
The Christmas party was memorable because of an incident that occurred
at the end of the evening.  The party was held at the Bakers’ residence, which
was also the location of the office for Baker Industries.  Ms. Corfield and her
boyfriend came to the party in the same car with Mr. Shaw and his wife.  At the
end of a pleasant evening, Ms. Corfield, her boyfriend and Mr. Shaw’s wife went
to the car after saying goodbye to the hosts.  Mr. Shaw stayed to tell his
parents how much he appreciated everything they had done for him.  After some
time, Ms. Corfield’s boyfriend went back to the house to tell Mr. Shaw it was
time to leave.  Mr. Shaw reacted angrily and, according to Ms. Corfield, struck
and pushed her boyfriend.  Mr. Baker and the boyfriend tried to calm Mr. Shaw
but had difficulty doing so.  Eventually, Mr. Baker asked someone to call the
police.  The police attended and Mr. Shaw was taken to jail for the rest of the
night, at the Bakers’ request.  He was not charged with any offences.  The
incident was upsetting for everyone.

[16]        
On the day of the meeting with the Bakers, Mr. Elder saw Ms. Corfield’s
truck at Reggies Veggies, where she was working.  He went in to see her.  She
was distraught.  He asked her what was wrong and she told him that Mr. Shaw was
behaving inappropriately with her and she couldn’t take it anymore.  She did
not describe the inappropriate behaviour in any detail.  She was crying and
extremely upset.  Mr. Elder told her that she must tell Mr. Baker.  He called
Mr. Baker and the two of them went to the Baker residence and met with Mr. and
Mrs. Baker.

[17]        
At the meeting, Mr. Elder explained what he had just learned from Ms.
Corfield.  She was hysterical at the time.  She sat on the floor and cried
throughout the meeting.  She told them that Mr. Shaw had acted inappropriately
with her and that she did not want to work with him anymore.  She could not
recall exactly what she said.  She believed that Mr. Baker asked her questions
about what kind of inappropriate behaviour.  He may have asked if Mr. Shaw
tried to kiss her.  However, she does not recall what she told him.  Mr. Baker
indicated that he would investigate the matter and that in the meantime, she
would not have to work with Mr. Shaw.  Indeed, he would arrange the job
assignments so that Mr. Shaw would never be in the same room with her.

[18]        
Over the next few days she did not have to work with Mr. Shaw.  He was
not in the office when the work was handed out in the morning but she could see
him in other parts of the Baker house.  She felt very awkward.  In addition,
she had told her boyfriend about Mr. Shaw’s advances and her boyfriend said she
had to quit working for Baker Industries.  At the end of that week, she
resigned.  She told Mr. Baker that her boyfriend said she could not work there
anymore.

Mr. Shaw’s Evidence

[19]        
Mr. Shaw said he worked at job sites with Ms. Corfield on a maximum of
ten occasions.  He described those jobs.  Most of them are at the locations
described by Ms. Corfield.  The following is Mr. Shaw’s description of his work
experiences with Ms. Corfield:

Sahtlam Rd.

This job involved a residential
well system that was not producing enough water.  He assigned the job to her
and attended with her so she could get some experience in simple well systems.

Norcross Rd.

This job involved work in the
crawl space of an old house.  The client indicated there was a leak in the
crawl space but could not say what kind of pipe was leaking.  Given the age of
the house, it was possible that the pipe could be galvanized or cast iron.  Ms.
Corfield did not have much experience with either.  It is possible to have
problems with cast iron pipe if it is cut in the wrong place.  He went with her
to the job to assist.  He thought it would be a good learning experience for
her.

Aros Rd.

This job involved gutter
cleaning on a two storey house using an 18 foot ladder.  He needed someone to
work with him to hold the ladder.  Ms. Corfield was the logical employee to
take with him because her hourly rate was the lowest.  He did not have an angry
outburst at that job.

Sherman Rd.

Ms. Corfield was working with
Gus Pimental, one of the other Baker Industries plumbers, at this new
construction site.  Mr. Shaw prepared the quotes for the job and attended at
the site on occasion to see how the work was coming.  He recalls seeing Ms.
Corfield when he attended the site.  The work involved perimeter drains as well
as new fixtures.

Wilson Rd.

This job was at a pump station
on the reserve for the Cowichan band. She was assigned the job to get
experience on a more complex well system.  The call came because the system was
not delivering any water.  It was a low yield well with two pumps, a bladder
tank and a water softening system.  It was quite complex.

Nitnat Rd.

Mr. Shaw took Ms. Corfield to
the Nitnat site because the job required two people.  It was easy service work
that involved fixing tub drains, toilets, hose bibs, and vanity sinks.  She was
the best plumber to take with him given her lower hourly rate.  He recalled two
events that took place on the Nitnat trip.  Ms. Corfield had been bruised on a
prior occasion when a hot water tank she was working on fell and hit her leg. 
She told Mr. Shaw about the incident and showed him the bruise either on the
way to or return from Nitnat.  To do so she pulled down her pants to show the
very large bruise on her hip or upper leg.  He asked if she needed to go on
compensation or see a doctor.  She indicated that she was fine and did not
require medical attention.  Mr. Shaw described her as a tough lady.  Mr. Shaw
also recalled playing an alphabet game with Ms. Shaw on the Nitnat trip.  The
game involved choosing a category and then going through the alphabet trying to
find examples from the category beginning with each letter.  Ms. Corfield chose
“body parts” as one of the categories.  He felt a bit uncomfortable about that
choice.

Highway 18

This job involved service work
at a farm.  Ms. Corfield required assistance to help remove a hot water tank. 
She called Mr. Shaw to come out to the site.

McNeil Rd.

This was a new installation. 
Mr. Shaw could not recall if he or Mr. Pimental was the journeyman who did most
of the work.  He does recall attending at the site when Ms. Corfield was there. 
A neighbouring property owner was tired of trades people parking in front of
his property and became verbally aggressive with Ms. Corfield.  Mr. Shaw told
the neighbour to show some respect and if he did they would move the van.

[20]        
Mr. Shaw did not recall working with Ms. Corfield at 2nd Street or
Sherman Road, and he did not recall going to Cowichan River Park with her. 
With respect to the other incidents described by Ms. Corfield, Mr. Shaw either
did not recall working with her on those occasions or did not give evidence about
those incidents.

[21]        
Mr Shaw denied having a sexual relationship of any sort with Ms.
Corfield.  He denied ever touching her for a sexual purpose.  He says he never
made sexually suggestive comments to her.

Analysis

[22]        
I will explain my reasons for accepting Ms. Corfield’s evidence in the
context of an examination of the defendants’ arguments.  I have separated these
arguments into four categories.  I have done this for ease of reference even
though it is somewhat artificial as the arguments are interrelated and are all
directed at Ms. Corfield’s credibility.  I should note that the categories are
mine.  The arguments were not organized this way by counsel.

[23]        
The first category is inconsistency.  Mr. Shaw says that Ms. Corfield’s
evidence should not be accepted as it is seriously inconsistent.  The most
contentious aspect of this argument centres on the defendants’ submission that
Ms. Corfield did not raise the issue of sexual assault until the writ was
issued, a year and a half after she left Baker Industries.  The defendants say
I should conclude, as a result of the inconsistencies, that the allegations are
fabrications.  The defendants also say that Ms. Corfield’s evidence at trial
was inconsistent with her discovery evidence as a result of which I should
conclude that her evidence generally should not be accepted.

[24]        
The second category is Ms. Corfield’s alleged inherent lack of
credibility.  Many aspects of the argument fall into this category.  The
defendants say that Ms. Corfield’s allegations are not credible when considered
together with other evidence which is not controversial.  A number of witnesses
stated that Mr. Shaw’s and Ms. Corfield’s behaviour in the presence of others
did not change over time.  There did not seem to be any tension between them. 
Ms. Corfield commissioned a painting from Mrs. Baker which, the defendants
argue, she would not have done if Mr. Shaw was assaulting her as alleged.  The
defendants also say that Ms. Corfield’s evidence about how the Assaults
impacted her is inherently unbelievable.  She blames the emotional problems she
has faced since 2005 on the Assaults rather than on the more serious Childhood
Abuse.

[25]        
The third category is financial motivation.  The defendants say that the
evidence of Veronica McCabe, Ms. Corfield’s former friend, is uncontradicted. 
She said Ms. Corfield told her that she was hoping to pay off her mortgage with
money recovered in this action.

[26]        
The fourth category is Ms. Corfield’s inappropriate behaviour.  The
defendants highlight examples of Ms. Corfield’s behaviour which they say show
she was attracted to, and flirted with Mr. Shaw.  Much was made of this
evidence during trial.  The defendants did not specify what inference I should
draw from it.  However, I assume the suggested inference is that Ms. Corfield
was trying to attract the attention of Mr. Shaw and felt scorned when that did
not happen.

Inconsistency

[27]        
Mr. and Mrs. Baker both testified that at the meeting after the
Christmas party, Ms. Corfield told them Mr. Shaw acted inappropriately, but did
not say his inappropriate behaviour involved sexual assaults.  They say the
first time they became aware of allegations of sexual assault was when they
received the statement of claim.  According to Mrs. Baker, Ms. Corfield said
Mr. Shaw was coming to her worksite too often and that made her uncomfortable. 
Mr. Baker described the complaint in similar terms.  He said Ms. Corfield was
upset because Mr. Shaw was in her presence too often and that his presence made
her uncomfortable.  They both agreed that Ms. Corfield appeared to be upset at
the meeting although Mrs. Baker suggested Ms. Corfield’s emotional condition
was much better by the end of the meeting.  Further, they agreed that Mr. Baker
asked Ms. Corfield if Mr. Shaw attempted to kiss her.  Mr. Baker recalled
asking her if Mr. Shaw attempted to have sex with her, and Mrs. Baker recalled
him asking if Mr. Shaw touched her sexually.  They both indicated that Ms.
Corfield gave negative responses to those questions.

[28]        
Mr. Baker was not quite as definitive in his evidence as Mrs. Baker.  At
one point in his cross-examination he agreed that the complaint Ms. Corfield
made at the meeting “could be called sexual” even though there was no
allegation of an assault.  He attempted to withdraw that statement later in the
examination.

[29]        
Neither of the Bakers was convincing in their denial of the sexual
element of Ms. Corfield’s complaint.  There are a number of reasons why I do
not accept their evidence.  First, I accept the evidence of Mr. Elder, in
preference to that of the Bakers.  He attended the meeting with Ms. Corfield
and the Bakers.  The Bakers have a dual interest in presenting evidence to
suggest that the Assaults did not occur:  Phil Shaw is their son and, until
very recently, Mr. Baker was the sole owner of Baker Industries.  Mr. Elder, by
contrast, has no interest in these proceedings.  He does not have a close
connection with either Ms. Corfield or the defendants as he is no longer
employed by Baker Industries.

[30]        
Mr. Elder first learned of the complaint by Ms. Corfield when he talked
to her at Reggies Veggies.  He understood from her comments that her complaint
was about sexual harassment by Mr. Shaw, even though she did not tell him
exactly what Mr. Shaw did to her.  When they met with the Bakers, according to
Mr. Elder, Ms. Corfield was so distraught that she could not speak.  She was
crying and trembling and sitting on the floor beside him.  He was the one who
told the Bakers that Mr. Shaw had acted inappropriately towards Ms. Corfield.  As
he was not aware of particulars of the allegations, he could not provide them
to the Bakers, but he did indicate that there was sexual impropriety in Mr.
Shaw’s actions.  Ms. Corfield was, according to Mr. Elder, too upset to speak. 
He did not recall Mr. Baker asking Ms. Corfield if Mr. Shaw tried to kiss her
or have sex with her.

[31]        
I note that Mr. Elder’s evidence about the meeting was similar to Ms.
Corfield’s evidence.  She acknowledged that she had difficulty expressing
herself in the meeting with the Bakers.  Throughout the meeting she was
embarrassed and extremely upset.  She admitted that Mr. Baker may have asked if
Mr. Shaw tried to kiss her.  She does not recall if she gave a response.  While
I accept that Ms. Corfield did not give any specifics about the nature of the Assaults,
I conclude that enough was said by Mr. Elder and Ms. Corfield to make it clear
to those present that Ms. Corfield’s complaints about Mr. Shaw’s inappropriate
behaviour were allegations of sexual assault or harassment.  Ms. Corfield’s
emotional condition during the meeting would have brought home to the Bakers
the serious nature of the complaint.

[32]        
All witnesses agreed that Mr. Baker said at the conclusion of the
meeting that he was going to investigate the allegations.  Further, he
indicated to Ms. Corfield that while he was carrying out the investigation, Mr.
Shaw would not work with her or be in her presence at the Baker Industries
office.  Neither the investigation nor the isolation of Mr. Shaw makes sense if
all that Ms. Corfield complained about was that Mr. Shaw was spending too much
time with her.  The only plausible explanation for the actions taken by Mr.
Baker is that Ms. Corfield was making serious allegations – and Mr. Baker
agreed the allegations were serious – of some form of sexual impropriety
committed by Mr. Shaw.

[33]        
There was also evidence from other witnesses confirming that Ms.
Corfield made the allegations of sexual assault shortly after leaving her
employment with Baker Industries.  She told her mother and a social worker that
she had been sexually assaulted at work.  She also told Ms. McCabe of the Assaults
at that time.  Ms. McCabe, who was called as a witness by the defendants,
confirmed in cross-examination that Ms. Corfield told her of the Assaults at the
time.

[34]        
Aside from my conclusions on the evidence, there is an additional reason
to find that Mr. Elder and Ms. Corfield did convey the message that Mr. Shaw’s
inappropriate actions were sexual in nature.  The statement of defence filed by
Mr. Shaw and Mr. Baker on May 30, 2007 admits that Ms. Corfield advised Mr.
Baker of allegations of sexual assault by Mr. Shaw on December 12, 2005.  Baker
Industries makes a similar admission at paragraph 4 of its statement of defence
filed on September 25, 2008:

In response to paragraphs, 15 and
16 of the Statement of Claim, the Defendant says that on or about December 12,
2005 the Plaintiff first made allegations of sexual assaults carried out
against her by Phil Shaw.

[35]        
The defendants never applied to withdraw those admissions.  At trial,
Ms. Corfield was taken by surprise by the suggestion that she did not advise
the Bakers of the allegations of sexual assault until the writ was issued.  Ms.
Corfield was clearly prejudiced by having this issue raised so late in the day contrary
to the admission of fact made in the pleadings.  Had the defendants applied to
withdraw the admissions, I would not have permitted them to do so.  In any
event, I find that the defendants were advised of the Assaults shortly after
December 11, 2005.  The allegations were not fabricated later by Ms. Corfield.

[36]        
The other inconsistencies relied upon by the defendants relate to
differences in Ms. Corfield’s testimony at trial and on discovery.  The
particular inconsistencies alleged are:

(a)      at
trial Ms. Corfield said she lost weight after the Assaults but on discovery she
said she could not recall anything about the period of time when she stopped
eating;

(b)      at
trial she agreed in cross-examination that she told Mr. Shaw about the
Childhood Abuse on the trip back from Nitnat but on discovery she could not
recall when she told him that;

(c)      at
trial Ms. Corfield said that Mr. Shaw paid money for her boyfriend’s ripped
vest (after the Christmas party incident) but she could not recall the amount,
while on discovery she believed that Mr. Baker paid $40 for the vest;

(d)      Ms.
Corfield gave evidence at trial about the assault at McNeil Rd. but on
discovery when asked about it she could not recall but said “maybe if I could
remember where McNeil Rd. is…”;

(e)      in
a Response to Demand for Particulars, Ms. Corfield provided a list of locations
where assaults occurred and it included 1015 Aros Road.  At trial Ms. Corfield
described an incident at Aros Road that was not a sexual assault.

[37]        
As I have already indicated, I found Ms. Corfield to be a very credible
witness.  She was prepared to acknowledge that she could be incorrect about
some of her recollections.  She also frankly admitted at times that she could
not recall certain particulars.  This is to be expected as she was being
questioned in detail about matters that took place six years ago.  Taking all
of her testimony into account, I conclude that the substance of her evidence
always had the ring of truth.

[38]        
The inconsistencies relied upon by the defendants do not alter my
assessment of Ms. Corfield’s credibility.  The first three alleged
inconsistencies are very minor.  The other two relate to the allegations
particularized by Ms. Corfield through counsel.  When those two inconsistencies
are examined, it is clear that these are also relatively minor.  At the end of
a long day of discovery she could not recall the McNeil Rd. location, but
implied that she may be able to do so with further consideration.  She had
particularized it prior to the discovery and she did recall it at trial.

[39]        
The Aros Rd. incident was not the scene of a sexual assault but it was
included in the list of locations given in Ms. Corfield’s response to the
Demand for Particulars.  However, it was one of the locations where an incident
took place that Ms. Corfield relies upon.  She says it was an example of the
kind of angry outbursts that she experienced when working with him.  She did
not swear either on discovery or at trial that a sexual assault took place at
Aros Rd.  In other words, there was no inconsistency in her sworn testimony.

Inherent Lack of Credibility

[40]        
The Bakers, Mr. Elder, Ms. McCabe, and Gary Watkins all said that when
they saw Ms. Corfield with Mr. Shaw, she did not seem to be uncomfortable or
nervous.  They did not notice any change in her behaviour during the time she
worked for Baker Industries.  The defendants argue that the inference to draw
from these uncontradicted observations is that the allegations of assault are
untrue.  In other words, the defendants say Ms. Corfield’s allegations lack
credibility in light of her behaviour when she was with Mr. Shaw in the
presence of other people.

[41]        
This argument has little merit.  It assumes that it will be readily
evident to other people when an acquaintance has been the subject of sexual
assaults.  If that was the case, victims of assault who have been unable or
unwilling to tell others of the assault, would still be identified, or
identifiable by their acquaintances.  Perpetrators of assaults would not be
able to continue to assault their victim over long periods of time because
other people would know that something was wrong simply through observation of
their friends or fellow workers.

[42]        
No evidence was presented to support this proposition.  There is,
unfortunately, no obvious and easily recognizable behaviour in victims of abuse
or sexual assault that informs friends and family of their victimization.  This
is evident from the many cases in our courts where sexual assaults or other forms
of abuse have persisted for long periods of time.  The unfortunate truth is
that there may be many reasons why a victim does not let others know of abuse. 
The relationship between the victim and perpetrator may be such that the victim
remains silent and does not advise others.  The victim may be embarrassed and
afraid to tell others about the abuse.

[43]        
Ms. Corfield explained why she did not tell anyone about the Assaults. 
She thought she could handle the situation on her own.  She was concerned that
if she complained, she may lose her job.  She was just starting out as a young
woman in an occupation dominated by men.  She was concerned that she may lose
the chance to continue working as a plumber.  She was also afraid that if she
told others about the Assaults, it might damage her relationship with her boyfriend. 
I accept her explanation and reject the argument that her behaviour was such
that her evidence is inherently lacking in credibility.

[44]        
Indeed, Ms. Corfield’s description of the Assaults was extremely
credible.  The Assaults started in a relatively minor way.  They built up over
time as Mr. Shaw became emboldened when Ms. Corfield did not complain to others
about what was happening.  As a result of her desire to manage her relationship
with Mr. Shaw without the assistance of others and her desire to keep her job
and her position as an apprentice plumber, she did not disclose the Assaults to
others.  Ironically, this enabled the Assaults to escalate.  However, there is
nothing inherently implausible about the sequence of events described by Ms.
Corfield.

[45]        
The argument that Ms. Corfield would not have commissioned Mrs. Baker to
do a painting for her mother for Christmas if Mr. Shaw actually assaulted Ms.
Corfield is also without merit.  I fail to see any possible connection between
the commissioning of the painting and Ms. Corfield’s credibility.  Ms. Corfield
liked Mrs. Baker and admired her paintings.  She believed her mother would like
one for Christmas and so she commissioned a painting from Mrs. Baker.  That
event has no probative value in relation to the Assaults.

[46]        
The defendants also say I should conclude that Ms. Corfield’s assessment
of the impact of the Assaults on her is inherently unbelievable.  The basis for
this argument is that the Childhood Abuse was more serious than the Assaults. 
Ms. Corfield’s stepfather pleaded guilty to charges of sexual assault in
relation to incidents that occurred over many years and involved sexual
touching and intercourse.  At the time of the Childhood Abuse, Ms. Corfield was
between the ages of 13 and 17.  By comparison, the Assaults are much less
intrusive.  As Ms. Corfield explained, during all of the Assaults, the parties
remained clothed.  Mr. Shaw put his hand under her clothing in only one of the
incidents.  The Assaults do not include intercourse.

[47]        
In spite of the fact that the Childhood Abuse was more invasive, Ms.
Corfield attributes her emotional and personal problems since 2005 to the Assaults,
rather than the Childhood Abuse.  The defendants argue that logically, some and
perhaps most of Ms. Corfield’s current problems must relate to the earlier,
more invasive assaults.  Accordingly, they say her contrary view is inherently
unbelievable, from which I should conclude that her evidence about the Assaults
is not credible.

[48]        
There is logic to the argument that the Childhood Abuse is an active
cause of the difficulties suffered by Ms. Corfield since 2005.  However, I do
not consider that Ms. Corfield’s contrary belief raises a significant
credibility issue in relation to her evidence about the Assaults.  In many
cases involving personal injury, there is a significant credibility element to
causation.  However, credibility has less prominence where the question is, to
what extent did two traumatic sexual assaults cause or contribute to
psychological injury.  It is evident that the injuries from the two incidents
may be indivisible.  The causation question is thus less capable of direct or
certain proof.  When Ms. Corfield says she blames the difficulties she has
experienced in the last six years on the Assaults, she is expressing a personal
view and not testifying to an observable fact.  As a result, even if on the
basis of all of the evidence, I reject her opinion regarding causation, I do
not have to find that she lacks credibility generally.  Her statement as to
causation is an opinion that she holds and not a statement of fact about an
observable, readily apparent, fact.

[49]        
I have considered the extent to which the Childhood Abuse caused or
contributed to Ms. Corfield’s emotional and psychological injuries later in
these reasons.  I do not accept her view that the difficulties she has suffered
since 2005 are solely caused by the Assaults but conclude instead that the
injuries from the two assaults are indivisible.  However, Ms. Corfield’s
assertion that the Assaults are the sole cause of the injuries since 2005 is
not inherently unbelievable.  Further, my conclusion does not cause me to
question her credibility regarding the Assaults.

Financial Motivation

[50]        
Ms. McCabe, who was until recently a close friend of Ms. Corfield,
testified that Ms. Corfield said she was hoping her mortgage could be paid off
by the damages awarded in this case.  The statement was made sometime after the
action was commenced, perhaps in 2008.  Ms. Corfield could not recall such a
statement but did not deny it.  The defendants also note that Ms. Corfield said
that finances were a source of stress for her.

[51]        
The defendants say that I should infer from this evidence that Ms.
Corfield is motivated by financial reward and that this should cause me to
question her credibility.  There is little merit to this submission.  There was
no suggestion in Ms. McCabe’s evidence that Ms. Corfield’s allegations were
fabricated or untrue.  A statement by a claimant about the use she might make
of a damage award does not necessarily imply that her claim lacks merit.  Here,
there was nothing about the statement to Ms. McCabe, or any other circumstances
that lead me to conclude that the claim was fabricated for the purpose of
financial gain.

Ms. Corfield’s Inappropriate Behaviour

[52]        
The inappropriate behaviour complained of by Mr. Shaw and his mother
included the following:

·      
On one occasion when Mr. Shaw was at Ms. Corfield’s residence
they played basketball.  Mr. Shaw said that Ms. Corfield was quite physical in
her play which included bumping into him.

·      
After the first few months at the job, Ms. Corfield wore more
makeup and put her hair in French Braids. When asked about this she said she
was “dangling the carrot”.

·      
She chose “body parts” for the word game played with Mr. Shaw on
the drive to Nitnat.

·      
She showed Mr. Shaw the large bruise on her thigh.

[53]        
Ms. Corfield did not deny any of the actions.  However, none of them are
significant in any way to the claim that is before the court.  Mr. Shaw’s
suggestion that the basketball game and the word game made him feel
uncomfortable is simply not credible.  There may have been impropriety in the
revelation of the thigh bruise, but according to Mr. Shaw the discussion that
followed was entirely work related.  He asked if she needed to see a doctor or
make a compensation claim and she indicated she was fine and did not need
medical attention.  The suggestion that Ms. Corfield was trying to flirt with
Mr. Shaw seems strained, but whether or not it is true, it is of no consequence
to the allegations raised by Ms. Corfield.

[54]        
In short, I reject the credibility arguments advanced by the
defendants.  I have no hesitation in finding Ms. Corfield to be a credible
witness.  Her evidence regarding the Assaults was detailed and consistent.  There
is nothing inherently unbelievable about her description of the events and the
relationship; indeed, her evidence was logical and compelling.

[55]        
By contrast, I found Mr. Shaw’s denial of the Assaults to be
unconvincing.  Mr. Shaw failed to give details about what happened at the job
sites in question.  Indeed, he said little about his relationship when working
with Ms. Corfield at the sites where the Assaults occurred.  He did not attempt
to explain what happened.  His failure to do so was striking.  If, as he
asserted, nothing untoward occurred on the jobs in question, it might be
possible for him to assert that because of the passage of time he had no
recollection of the events.  However, that was not the import of his evidence. 
Instead of testifying about the events at the job sites, he explained why he
asked Ms. Corfield to go to those jobs with him.  In some cases he did so to
further her education, in other cases it was because a second plumber was
required and it made good business sense to have Ms. Corfield attend because of
her lower hourly rate.  I can conclude from this evidence that he does recall
the jobs in question.  This makes his failure to give his version of the events
at the job sites a significant omission.

[56]        
One of the reasons that Mr. Shaw provided an explanation for Ms.
Corfield’s attendance at the sites was his denial of her assertion that the two
of them worked together frequently towards the end of her time with Baker
Industries.  He said they only worked together on approximately ten occasions. 
His evidence on this issue was not believable.  It is contrary to Ms.
Corfield’s evidence, and is also inconsistent with the evidence of Gary Watkins
and Veronica McCabe.

[57]        
Mr. Watkins worked in one of the plumbing supply stores in Duncan.  He
stated in cross-examination that Mr. Shaw and Ms. Corfield came in to the store
together frequently:  usually once or twice a day.  It was often apparent to
him that they were working together as they would arrive and leave together in
one of the company’s vans.

[58]        
Ms. McCabe also worked at the plumbing supply store.  She gave evidence
that was similar to Mr. Watkins’ evidence.  She testified that she saw Mr. Shaw
and Ms. Corfield together either every day, a couple of times a day, or
sometimes not at all.  She said she did not know how often they worked together
but from her observations she believed they were working on jobs together on
some of the occasions when she saw them.

[59]        
When I consider all of the evidence, I conclude that Mr. Shaw did work
frequently with Ms. Corfield.  This conclusion is supported by the evidence of
Ms. Corfield and the two supply store witnesses.  It is also supported by the
phone records of telephone calls between Mr. Shaw and Ms. Corfield.  I infer
that the dramatic increase in calls between the two of them during the last few
months when Ms. Corfield was at Baker Industries occurred because they were
often working together, and because of the tension that had arisen in their
relationship as a result of the Assaults.

[60]        
The evidence regarding the fight at the Christmas party provides further
support for my conclusion that Mr. Shaw is not credible.  Even though the
incident has little to do with the allegations in this action, much time at
trial was spent on the fight.  Mr. Shaw, his mother and Mr. Baker all described
the incident as a relatively minor shoving match that started between Mr. Shaw
and Ms. Corfield’s boyfriend and was resolved when Mr. Baker stepped in to
restrain Mr. Shaw.  Ms. Corfield described a more violent incident that included
punches and the choking of Mr. Baker by Mr. Shaw.  Ms. Corfield’s version of
the events is far more credible.  The altercation ended with the arrival of the
police who were called by the Bakers.  They took Mr. Shaw into custody
overnight.  The police must have taken that step based on what they were told
about Mr. Shaw’s actions by the other guests at the party.  I conclude that Ms.
Corfield’s description of the events is closer to the reality, and that Mr.
Shaw and his parents attempted to downplay Mr. Shaw’s aggression to put him in
a better light.

[61]        
In summary, I conclude that Mr. Shaw assaulted Ms. Corfield on the nine
occasions she described and that the events occurred as described by Ms.
Corfield.

Issue 2.        Is either or
both of Mr. Baker and Baker Industries directly liable for the Assaults?

[62]        
Ms. Corfield argues that Mr. Baker and Baker Industries were negligent
in failing to adequately supervise their employees.  She notes that Baker
Industries had no workplace policies regarding the conduct of employees,
generally, or sexual harassment in particular.  She argues that the negligence
of either or both of these defendants was an effective cause of the Assaults.  In
addition, she argues that after her disclosure of the Assaults, her employer
failed to establish a safe work environment for her and failed to carry out a
proper investigation into the allegations.  She says that these are also
negligent breaches of an employer’s duties and that these breaches led to her
decision to leave Baker Industries.

[63]        
There is no doubt that Baker Industries, as Ms. Corfield’s employer,
owed her a duty of care.  Of course, to establish liability Ms. Corfield must
also show that these defendants were in breach of the standard of care.  The
two questions that arise in this case then are:  a) what is the standard
of care owed by a small family plumbing contractor and b) did Baker
Industries, or Mr. Baker, breach that standard of care.  I have concluded that
neither Mr. Baker as the manager of the business, nor the employer, Baker
Industries, was negligent.  Further, I find that no action or omission of Baker
Industries was a cause of the Assaults.

[64]        
Ms. Corfield led no evidence regarding the appropriate standard of
care.  While that is not fatal to the claim, it is difficult to prove a breach
of duty where no proof has been offered as to the appropriate standard of care.
Mr. Baker admitted that he was aware that there could be problems within a
workplace regarding sexual harassment and that Baker Industries had no formal
policy in place.  However, Ms. Corfield led no evidence regarding recommended
practices and no evidence about norms or standards within the small business
community.

[65]        
Given the lack of evidence regarding the standard of care, I must assess
Baker Industries’ employment practices based on the limited evidence presented
and determine whether those practices created a risk of harm.

[66]        
Baker Industries’ business primarily consisted of performing service
calls for smaller jobs usually at residential premises.  They also performed
smaller new construction work.  Their plumbers attended at jobs in vans
provided by the company. The work was usually carried out by a single plumber
but on occasion two plumbers would attend together.  The plumbers started out
each day at the Baker residence which was also the company office.  By all
accounts it was a warm, collegial workplace.  The employees had ample
opportunity to meet with and exchange information with their manager, Mr.
Baker.  They were all provided with cell phones so that they could contact Mr.
Baker at the office at any time.  When Ms. Corfield started work for the
company she worked with an experienced plumber who provided supervision and
mentoring.  For most of the time, Mr. Elder filled that role.

[67]        
Given the nature of the business, I find that there was nothing about
the employment practices of Baker Industries that created or exposed the
employees to a risk of the kind of harm that occurred.  The possibility of one
worker assaulting another cannot be eliminated when employees are required to
work together, sometimes in confined spaces, and when they spend time
travelling together.  However, I conclude that the way in which Baker
Industries carried on its operations was reasonable.  It provided adequate
supervision of its employees and no act or omission of Baker Industries caused
or contributed to the Assaults.  Further, there was no credible evidence to
suggest that Mr. Shaw was previously involved in similar tortious activities.  There
was no reason for Baker Industries to take special care regarding his
activities.

[68]        
I reject Ms. Corfield’s argument that Baker Industries failed to provide
a safe work environment after learning of the Assaults or that this alleged
failure led to her departure from the company.  Mr. Shaw did not work with Ms.
Corfield and was prevented from being in the office at the time of work
assignments for the few days after she told the Bakers about the Assaults.  I
conclude that Ms. Corfield left her employment with Baker Industries as she was
simply unable to continue working at the same job, in relatively close
proximity to Mr. Shaw once she had told others about the Assaults.  Ms.
Corfield’s boyfriend was encouraging her to leave the job given what had
happened.  This was undoubtedly good advice.  I find that Ms. Corfield had no
real choice but to quit, given the actions of Mr. Shaw and his position in the
family business.

[69]        
Finally, I also reject Ms. Corfield’s argument that Mr. Baker’s failure
to investigate the Assaults was a breach of duty which also caused her to leave
her employment with Baker Industries.  While I accept that Mr. Baker did not
take active steps to investigate the Assaults, his failure to do so did not
cause her any loss or damage and was not a factor in her decision to quit.

Issue 3.        Is Baker Industries vicariously liable for the Assaults?

[70]        
Ms. Corfield argues that Baker Industries should be vicariously liable
for the Assaults.  She relies on the decision in Bazley v. Curry, [1999]
2 S.C.R. 534, for the proposition that an employer who was not negligent can be
found liable for the sexual assault of an employee.  The central question is
whether the wrongful act is sufficiently related to conduct authorized by the
employer.  She says that when the relevant factors are considered, there is a
sufficient connection in this case between the employer’s creation or
enhancement of the risk and the intentional tort committed by Mr. Shaw.  She
argues that the circumstances of this case are very similar to those in Pawlett
v. Dominion Protection Services Ltd., 2007 ABQB 415, where the defendant
company was found vicariously liable for the sexual assault of an employee by
her supervisor.

[71]        
The defendants did not make submissions on this aspect of the case. 
That may be because Mr. Shaw is, as of the date of trial, the sole shareholder
of Baker Industries.  In spite of the defendants’ failure to seriously contest
this issue, I have determined that Baker Industries cannot be held vicariously
liable for the actions of Mr. Shaw.

[72]        
At the time of the trial in this action, the parties did not have
available to them the recent decision in A.B. v. C.D., 2011 BCSC 775,
where Gray J. considered the liability of a school district for the sexual
battery committed by a teacher.  She found that the school district, as
employer was neither negligent nor vicariously liable.  In doing so, Gray J.
set out the proper approach to the analysis of vicarious liability with
reference to the decisions in Bazley and Jacobi v. Griffiths, [1999]
2 S.C.R. 570.  I accept and adopt her thorough analysis.

[73]        
The question a court must consider where there has been a sexual battery
is whether the unauthorized acts of the employee are so connected with
authorized acts that “they may be regarded as modes (albeit improper modes) of
doing authorized acts”.  In Bazley, the court set out a two-step
process for determining when an unauthorized act is so connected to the
employer’s enterprises that vicarious liability should be imposed.  The first
step is to consider whether there are precedents which unambiguously determine
whether vicarious liability should apply in the circumstances.  The second step
is to determine whether vicarious liability should be imposed in light of the
policy rationales behind strict liability.

[74]        
The parties did not fully argue the first step analysis; whether there
are precedents applicable to the vicarious liability analysis in this case. 
This is likely because very few decisions which have considered the vicarious
liability of employers since Bazley involve adult co-workers in
commercial enterprises.  The decision in Pawlett is an exception.  While
the decision was appealed to the Alberta Court of Appeal, that court did not
consider the vicarious liability issue.

[75]        
The decision in Pawlett is, of course, not binding on this
court.  Further, I do not consider that decision to be an unambiguous precedent
that applies to the circumstances of this case.  The analysis in Pawlett
was perfunctory.  The court did not consider the first step in the analysis at
all.  It did not refer to G.A. v. McGregor, 2003 ABQB 960, or other
cases which might have provided some assistance on that issue.  More
significantly, the court did not refer to Jacobi or other decisions
where courts have looked carefully at the policy considerations which are
significant in the second step of the analysis.

[76]        
In the absence of prior decisions which unambiguously determine whether
vicarious liability should be found, I must proceed to the second step of the
analysis.  This is described at paras. 41 and 42 in Bazley.  At
this stage of the analysis, a court is to “openly confront the question of
whether liability should lie against the employer”.  That is done by
considering if there is “a significant connection between the creation or
enhancement of a risk and the wrong that accrues”.  Incidental connections to
the employment enterprise, like time and place (without more), will not
suffice.  Once engaged in a particular business, it is fair that an employer be
made to pay the generally foreseeable costs of that business.  In contrast, to
impose liability for costs unrelated to the risk would effectively make the
employer an involuntary insurer.

[77]        
At para. 41 of Bazley, McLachlin J. (as she then was) set
out some of the factors that may be considered by a court to determine if there
was a strong connection between what the employer was asking the employee to do
(i.e. the risk created by the employer’s enterprise) and the wrongful act:

(a)   the opportunity that the enterprise afforded the
employee to abuse his or her power;

(b)   the extent to which the wrongful act may have furthered
the employer’s aims (and hence be more likely to have been committed by the
employee);

(c)   the extent to which the wrongful act was related to
friction, confrontation or intimacy inherent in the employer’s enterprise;

(d)   the extent of power conferred on the employee in
relation to the victim;

(e)   the vulnerability of
potential victims to wrongful exercise of the employee’s power.

[78]        
At para. 46, McLachlin J. summarizes the approach to this step:

In summary, the test for vicarious
liability for an employee’s sexual abuse of a client should focus on whether
the employer’s enterprise and empowerment of the employee materially increased
the risk of the sexual assault and hence the harm. The test must not be applied
mechanically, but with a sensitive view to the policy considerations that
justify the imposition of vicarious liability ^__ fair and
efficient compensation for wrong and deterrence. This requires trial judges to
investigate the employee’s specific duties and determine whether they gave rise
to special opportunities for wrongdoing. Because of the peculiar exercises of
power and trust that pervade cases such as child abuse, special attention
should be paid to the existence of a power or dependency relationship, which on
its own often creates a considerable risk of wrongdoing.

[79]        
When I apply the relevant factors to the circumstances of this case, I
conclude that there was not a strong connection between what Mr. Shaw was asked
to do and the sexual assaults he committed.  The opportunity afforded to Mr.
Shaw to abuse his power was not significant or unusual.  The assignment of work
was done openly.  There was ample opportunity for employees to raise issues
about the work or work assignments with senior management, Mr. Baker.  The
wrongful acts did not further the employer’s aims in any way.  It cannot be
seriously contended that there was friction, confrontation or intimacy inherent
in the business of Baker Industries.  There was nothing about the operation of
a residential service plumbing business that created situations of intimacy
between employees.  While Mr. Shaw was provided with supervisory authority in
relation to Ms. Corfield and other employees, the power given to him was not
extensive.  As I have already noted, it was not power that could be easily used
for a wrongful purpose.  Finally, plumbers in the employ of Baker Industries
would not be expected to be potentially vulnerable to the wrongful exercise of
Mr. Shaw’s authority as a supervisor.

[80]        
In short, there is nothing about the enterprise of Baker Industries or
the authority imparted to Mr. Shaw that materially increased the risk of sexual
assault of fellow employees.  Quite simply, this is a situation where Mr. Shaw
took advantage of incidental connections to Ms. Corfield that occurred in an
employment relationship.  He took advantage of the opportunities of time and
place.  That alone is not sufficient for a finding of vicarious liability.

[81]        
Looking at the broader policy considerations, it would significantly
increase the potential liability of commercial employers to impose vicarious
liability in these circumstances.  Many employers would face the risk of
becoming insurers in situations where a supervisor wrongfully took advantage of
incidental opportunities presented by their relationship with fellow
employees.  There are legions of circumstances where employees may be alone
with other employees in vehicles, offices or work spaces.  In the absence of
negligence on the part of the employer, it would be unfair to hold the employer
responsible for sexual assaults merely because an employee took advantage of
those opportunities.  Of course, vicarious liability may be imposed if the
nature of the work, the special position of the empowered employee, or the
vulnerability of the victim, increases the risk of that kind of harm.

[82]        
The decision I have arrived at here is not surprising.  Indeed, it is to
be expected given the decisions regarding vicarious liability in cases such as Jacobi;
A.B. v. C.D.; and H. (S.G.) v. Gorsline, 2004 ABCA
186, [2005] 2 W.W.R. 716, leave to appeal ref’d [2004] S.C.C.A. No. 385. 
Even though those cases involved sexual assaults of children, courts declined
to find vicarious liability.  The defendant employees, teachers and a
recreation director, took advantage of incidental opportunities presented
through employment to assault the children.  However, their employment did not
encourage or require them to have intimate contact with the youth.  In Jacobi,
at para. 82, Binnie J. rejected the argument that putting an employee in
the position of a mentor created an increased risk of sexual abuse:

I do not accept that an
enterprise that seeks to provide a positive role model thereby encourages
intimacy. Nor do I believe that “mentoring”, as such, puts one on the slippery
slope to sexual abuse. If it did, any organization that offered “role models”
would be looking at no-fault liability.

[83]        
That reasoning is apposite here.  The fact that a supervisor is put in a
position to supervise and mentor a new and younger employee does not put the
supervisor on a slippery slope to sexual abuse.  Supervision and mentoring are
essential roles in any organization and the fact that the employment presents
opportunities where those tasks may be carried out in private does not by itself
materially increase the risk of harm.

[84]        
I conclude that Baker Industries is not vicariously liable for the
actions of Mr. Shaw.  Given the decision I have reached on this issue, I need
not consider Ms. Corfield’s argument that Mr. Baker should be found personally
liable because the company rendered invoices and issued cheques and other
documents using the trade name, “Baker Plumbing and Renovations” rather than
the company name.

Issue 4.        What damages should be awarded to Ms. Corfield?

Positions of the Parties

[85]        
Ms. Corfield alleges that she has suffered psychological and emotional
harm as a result of the Assaults.  The symptoms she suffers from include
anxiety, depression, loss of self-esteem, inability to concentrate, sleep
disturbance, and anger.  She says she has abused alcohol as a result of her
anxiety and depression, and that she has a fear of working with new male
plumbers.  She also blames her repeated failure to pass the Interprovincial apprenticeship
exams required for certification as a journeyman plumber (“Interprovincial
Exams”) on her psychological and emotional situation.  In short, she says the Assaults
have had a profound and long-lasting effect on her personal and working life.

[86]        
Ms. Corfield acknowledges that she suffered from similar problems
following the Childhood Abuse.  However, she says she was functioning well by
the summer of 2005 and was well on the way to recovery.  In these
circumstances, she believes that the problems she has suffered since working
with Mr. Shaw were primarily caused by the Assaults.  Alternatively, if the Childhood
Abuse has had a longer impact on her emotional well-being, she argues that most
of the psychological injuries she has suffered are indivisible.

[87]        
Ms. Corfield claims damages under several heads of damage.  She seeks an
award for non-pecuniary damages in the amount of $150,000, taking into account
the aggravating circumstances of this case.  She says that Mr. Shaw’s
misconduct is malicious, highhanded and deserving of punishment.  She asks for
an award of $40,000 in punitive damages.  She claims past income loss of
$30,000 based primarily on the difference between what she would have earned
had she continued to work for Baker Industries and what she did earn from her
new employer.  She also seeks an award of $50,000 for loss of future earning
capacity and $10,000 for the cost of future counselling.

[88]        
The defendants dispute the plaintiff’s assertion that all of her current
difficulties are related to the Assaults.  The Childhood Abuse was egregious
and prolonged.  From the age of 12 to 17 she was abused verbally, physically
and sexually.  The defendants say it is inconceivable that Ms. Corfield did not
continue to suffer from the prolonged Childhood Abuse after 2005.  Further,
they say she would have continued to suffer from that prior abuse with or
without the additional assaults by Mr. Shaw.  The defendants also dispute the
extent of Ms. Corfield’s emotional and psychological difficulties.  They note
that she found a job within two weeks of leaving Baker Industries and held the
job continuously for more than five years. She has been able to sustain a
healthy relationship with her current partner for three years and is now acting
as a stepmother to his children.  Further, the defendants note that in spite of
opportunities to do so, she has not regularly attended counselling.  The
defendants say that an appropriate award for non-pecuniary damages taking into
account the aggravating factors is $25,000.

[89]        
The defendants say that there should be no award for punitive damages in
this case.  If the award for non-pecuniary loss fully takes into account the
aggravating circumstances then there is no need to further punish Mr. Shaw
given his degree of moral culpability.  The defendants say Ms. Corfield has
failed to prove any past wage loss amount other than a modest amount that
should be awarded on constructive dismissal principles.  They also say Ms.
Corfield has failed to prove that there is a substantial possibility of future
income loss.

Non-Pecuniary Damages

[90]        
Ms. Corfield has been seriously impacted by the Assaults.  While she was
still working at Baker Industries, she went into what she described as
“survival mode”.  She maintained a happy appearance on the outside, but was not
functioning well.  She slept poorly, experienced nightmares and started closet
drinking.  She was anxious most of the time and felt that she was not in
control of her emotions.  After leaving Baker Industries, she quickly found
work with another plumbing contractor in Duncan.  She continued in her survival
mode and attempted to ignore the emotional difficulties she was experiencing. 
She did not go to counselling until 2007 at which time she felt that she was
spiralling out of control.  Over the past five years she has continued to
experience anxiety, insecurity, inability to sleep, nightmares, excessive
drinking, fear of social situations and lack of enjoyment of life.

[91]        
While I accept Ms. Corfield’s general description of the emotional and
psychological harm she has suffered, she did not give detailed evidence
regarding the severity of symptoms or describe with any precision how the
symptoms changed over time.  I appreciate that this may be a difficult task for
someone in her situation.  However, Ms. Corfield’s evidence lacked detail and
this shortcoming was not remedied by evidence from a family doctor or
counsellor.

[92]        
In this situation, a good barometer of the impact of the Assaults on Ms.
Corfield is the objective evidence of her ability to function.  She says that
she continues to have difficulty with everyday living.  However, the emotional
and psychological difficulties she has encountered did not prevent her from
quickly finding plumbing work with a new company.  She continued to work with
that company for more than five years and only left shortly before this trial
because of a shortage of work and a desire to prepare for the trial.  She
appears to have functioned well within that organization.  In addition, she
managed to work her way through a separation from one partner and successfully
establish a new relationship.  Her new partner did not give evidence, but based
on the evidence of Ms. Corfield and her mother, this relationship is strong and
healthy, and indeed a significant improvement over her previous relationship.

[93]        
I must conclude from Ms. Corfield’s actions and accomplishments since
she left Baker Industries, that the impact of the Assaults has not been as
significant as she believes.  Her failure to attend regularly for scheduled
counselling sessions provides additional support for this conclusion.  More
importantly, the report of Dr. Bruce, a registered counselling psychologist who
first saw Ms. Corfield in November 2010, suggests that her depression and
anxiety symptoms are moderate or mild.

[94]        
Dr. Bruce’s report has a number of limitations.  The report was prepared
after only four counselling sessions with Ms. Corfield.  She did not attempt to
assess the cause of Ms. Corfield’s symptoms and provided no opinion on
causation.  She did not attempt to assess the impact of the Childhood Abuse or
Ms. Corfield’s position prior to 2005.  She accepted, without qualification,
Ms. Corfield’s subjective statements.  Even with those shortcomings, Dr.
Bruce’s report is useful.  She provides an assessment of Ms. Corfield’s current
psychological and emotional condition.  She finds that Ms. Corfield is
suffering from Post Traumatic Stress Disorder and major depression with anxiety
symptoms.  She states as follows in the report:

[Ms. Corfield’s] scores indicated that she is moderately
depressed, mildly anxious and has a minimal level of hopelessness.  The
moderate depression, minimal hopelessness and mild anxiety indicate that Joy is
very distressed with her depressive symptoms but is not overwhelmed with
feelings of anxiety or despair about her future.  This response set may
indicate acute, transient, reactive depression that is highly responsive to
treatment.  (p. 2)

Joy’s history of childhood abuse and neglect could and
probably does make her more vulnerable to experience a more intense emotional
affect from stressful events.  It most likely exacerbates and affects her
ability to process the emotional impact of the incident with her supervisor at
her former workplace.  (p. 5)

Recommendations

I would recommend that Joy could
benefit from counselling treatment on a regular basis once every couple weeks
[sic] over a period of six months in order for her to comes [sic] to terms with
the psychological distress, in particular the posttraumatic stress symptoms
that continue to cause her difficulties.  (p. 5)

[95]        
I accept Dr. Bruce’s assessment including her findings regarding the
severity of the symptoms and the likelihood Ms. Corfield’s condition is
amenable to treatment.

[96]        
The defendants argue that the amount awarded to Ms. Corfield for
non-pecuniary damages must be reduced to take into account the emotional and
psychological injury suffered by her as a result of the Childhood Abuse.  This
raises two questions.  First, to what extent are the injuries from the Assaults
and the Childhood Abuse divisible?  Second, what was Ms. Corfield’s condition
immediately prior to the Assaults?

[97]        
The proper approach to these questions is described by Chiasson J.A. in B.P.B.
v. M.M.B., 2009 BCCA 365 at para. 33:

In a case such as this where
there are multiple causes of a plaintiff’s injury, the core question is whether
the injury is divisible.  If it is, a plaintiff can recover from a defendant
only the damages attributable to the injury caused by that defendant.  If the
injury is indivisible, subject to considerations I shall discuss, a plaintiff
can recover 100% from the defendant of the damages attributable to the injury
which is caused or contributed to by the defendant regardless of the
contribution to the injury by others….

[98]        
The additional consideration, the application of the thin or crumbling
skull rules, is described at para. 43:

I[f] the injury is indivisible,
the court must consider the possible application of the thin skull or crumbling
skull rules in the context of the victim’s original condition.  If the
crumbling skull rule applies, it forms part of returning the victim to his or
her original condition and the tortfeasor is not responsible for events that
caused the crumbled skull.  Absent the application of the crumbling skull rule,
where the injury is indivisible, all torfeasors who caused or contributed to
the injury are 100% liable for the damages sustained by the victim.

[99]        
In Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 24, Major
J. gave a simple example of a divisible injury:  one tortfeasor injures the
plaintiff’s arm and another injures the plaintiff’s foot.  Of course, in sexual
assault cases it is more difficult to differentiate between injuries.  Where a
plaintiff has suffered emotional and psychological harm as a result of the
tortious acts of two or more defendants, it will often be impossible to neatly
separate the injuries between the tortious acts.  In Blackwater v. Plint,
2005 SCC 58, [2005] 3 S.C.R. 3, the Court commented on this difficulty at para. 74:

The calculation of damages for
sexual assault to Mr. Barney is complicated by two other sources of trauma: (1)
trauma suffered in his home before he came to AIRS; and (2) trauma for
non-sexual abuse and deprivation at AIRS that was statute barred. In reality,
all these sources of trauma fused with subsequent experiences to create the
problems that have beset Mr. Barney all his life. Untangling the different
sources of damage and loss may be nigh impossible. Yet the law requires that it
be done, since at law a plaintiff is entitled only to be compensated for loss
caused by the actionable wrong. It is the “essential purpose and most basic
principle of tort law” that the plaintiff be placed in the position he or she
would have been in had the tort not been committed….

[100]     In the
present case, the evidence about the nature of Ms. Corfield’s psychological and
emotional trauma following the Childhood Abuse was not extensive.  However, the
difficulties she encountered included loss of self-esteem, anxiety and
depression.  She drank to excess and had difficulty sleeping.  Dr. Bruce noted
that the Childhood Abuse left Ms. Corfield “more vulnerable to experience a
more intense emotional affect from stressful events.”

[101]     There is
no question that the nature of the emotional and psychological injuries she
suffered as a result of the Childhood Abuse is similar to, if not the same as,
what she has experienced since the Assaults.  Any attempt to divide those
injuries into causes as between the two tortfeasors would be artificial.  There
was no evidence proffered which would allow me to conclude that some of the
symptoms or emotional difficulties suffered by Ms. Corfield since 2005 were
caused solely by the Childhood Abuse.  Accordingly, I conclude that all of Ms.
Corfield’s emotional and psychological difficulties since 2005 were caused or
contributed to by the Assaults.  In other words, the injuries she has suffered
from since 2005 are indivisible from those injuries suffered from the Childhood
Abuse.

[102]     In
reaching that conclusion, I am not suggesting that the Assaults were the only
cause of her injuries, just that her “damage and loss has been caused by the
fault of two or more persons”, one of whom is Mr. Shaw.  As a result, in
accordance with the provisions of s. 4 of the Negligence Act, R.S.B.C.
1996, c. 333, Mr. Shaw is jointly and severally liable for the injuries
suffered since the Assaults, and he is responsible for the full cost of loss
and damage suffered since the Assaults subject to consideration of the
crumbling skull principle.

[103]    
The difference between a thin skull and a crumbling skull is described
in Athey at paras. 34 and 35:

… The “crumbling skull” doctrine is an awkward label for a
fairly simple idea.  It is named after the well-known “thin skull” rule,
which makes the tortfeasor liable for the plaintiff’s injuries even if the
injuries are unexpectedly severe owing to a pre-existing condition. The
tortfeasor must take his or her victim as the tortfeasor finds the victim, and
is therefore liable even though the plaintiff’s losses are more dramatic than
they would be for the average person.

The so-called “crumbling skull”
rule simply recognizes that the pre-existing condition was inherent in the
plaintiff’s “original position”.

[104]     One aspect
of Ms. Corfield’s “original position” was described by Dr. Bruce; she was “more
vulnerable to experience a more intense emotional affect from stressful
events”.  In other words, she was fragile and susceptible to suffering
emotional damage.  There is no question that this condition falls within the
“crumbling skull” category.  Ms. Corfield continues to have that susceptibility
and Mr. Shaw does not have to compensate her for continuing vulnerability.

[105]     However,
the defendants also argue that Ms. Corfield was still experiencing emotional
and psychological difficulties from the Childhood Abuse before she was
assaulted by Mr. Shaw.  They say the symptoms she suffered from included
anxiety, depression, poor sleep, nightmares, alcohol abuse and other symptoms.  The
evidence of Ms. Corfield’s mother provides some support for this position.  Ms.
Corfield herself said that she “felt herself fairly recovered” from the Childhood
Abuse.  I take this to mean that she was doing reasonably well but had not
fully recovered.  In cross-examination she admitted that her doctor recommended
she attend counselling in 2003 and 2004.  This confirms that in the two years
before she started working at Baker Industries she was experiencing emotional
difficulties.  She also admitted to continuing intimacy problems arising from
the Childhood Abuse.

[106]     The Childhood
Abuse started when Ms. Corfield was 12 years old and continued until just
before her high school graduation, a period of five years.  She was subjected
to physical, verbal and sexual abuse which included intercourse.  Her
stepfather pleaded guilty to criminal charges arising from the abuse.  The Childhood
Abuse ended only three or four years prior to Ms. Corfield’s work at Baker
Industries.  The defendants say the Childhood Abuse was so invasive, such a
breach of trust and persisted for so long that the psychological and emotional
impact of that abuse must have continued up to 2005, and would have continued
thereafter even without Mr. Shaw’s wrongful actions.

[107]     The
defendants did not present any expert evidence on this issue.  As I have noted,
Dr. Bruce did not offer any opinion on causation generally or on the impact of
the Childhood Abuse in particular.  In spite of the absence of expert evidence
and Ms. Corfield’s assertion that the Childhood Abuse was not a factor in her
ongoing difficulties, I conclude that she did have ongoing emotional and
psychological problems in 2005 that would have persisted even if Mr. Shaw had
not assaulted her.  Ms. Corfield was still struggling with emotional issues
from the Childhood Abuse and was vulnerable to emotional stress.  Her fragility
and vulnerability were inherent in her original position.  When I take all of
the evidence into account, I conclude there was a “measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff in the
future”: Athey, at para. 35.  Indeed, her situation was a classic
example of a crumbling skull situation.

[108]     The
difficult question here is how to assess damages to take into account the
original position and that measurable risk.  I could either award an amount to
represent the additional injury suffered over and above her original position,
or award an amount that represents her loss and damage as a result of the 2005 Assaults
and reduce that by some percentage to take into account the original position.  I
am of the view that the latter approach is preferable as it will show clearly
the deduction made to take into account Ms. Corfield’s original position.

[109]     I accept
Ms. Corfield’s statement that she was feeling “fairly recovered” as of 2005. 
She had managed to enrol in the plumbing program through Malaspina College and
started off well with her new employer.  The emotional and psychological
difficulties she was experiencing were not debilitating and were not having a
large impact on her day to day life.  However, she continued to be emotionally
fragile and vulnerable.  Given my conclusion that all the injuries suffered
were indivisible, the deduction to take into account Ms. Corfield’s original
position must be modest.  I will apply a discount of 15% to take into account
Ms. Corfield’s pre-existing condition.

[110]     The
principles to apply to the assessment of non-pecuniary damages for sexual
assault in British Columbia are set out in Y. (S.) v. C. (F.G.),
[1997] 1 W.W.R. 229, 26 B.C.L.R. (3d) 155 (C.A.).  The “cap” on non-pecuniary
damage awards does not apply to intentional torts of a quasi-criminal nature,
such as sexual assault.  Aggravated damages do not constitute a separate head
of damages.  Due to the inherent difficulty of separating the physical harm
inflicted by sexual assaults from the emotional and psychological harm,
aggravating circumstances must be taken into account when assessing an award for
non-pecuniary damages in a sexual assault case.  The court noted at para. 57
that the view which the trier of fact takes of the aggravating features is
critical to the assessment of non-pecuniary damages.  Aggravating circumstances
can include the relationship between the parties, particularly if it is one of
trust, the duration of abuse, the number of assaults, the age of the victim,
the degree of violence and coercion, the nature of the abuse, the physical pain
and mental suffering associated with the abuse, as well as the lack of remorse
on the part of the defendant: C.C.B. v. I.B., 2009 BCSC 1425, at para. 56.

[111]    
In A.B. v. C.D., at para. 165, Gray J. also provided
a useful list of factors to be considered in awarding damages in sexual assault
cases:

a)         the frequency of assaults;

b)         the nature of the assaults;

c)         the age of the complainant at the time;

d)         the vulnerability of the complainant;

e)         the relationship between the parties;

f)          whether force or violence was used;

g)         the effect and consequence on the victim; and

h)         whether aggravated
damages are included.

[112]     Ms.
Corfield relied on a number of cases where substantial awards of non-pecuniary
damages were made to plaintiffs who were sexually abused as children for long
periods of time including B.P.B.; Y. (S.); and
C.C.B. She also referred to Pawlett; Sulz v. Canada (Attorney
General), 2006 BCSC 99; and Brooks v. British Columbia, 2000 BCSC
735.

[113]     The
defendants relied on a number of cases where modest awards for sexual assault
or harassment were made including: B. (D.J.) v. B. (A.R.) (1997),
44 B.C.L.R. (3d) 154 (S.C.); Plouffe v. Roy (2007), 50 C.C.L.T. (3d) 137
(Ont. S.C.J.); Pawlett; and McLean v. Battle, 2005 BCSC
1502.

[114]     The
aggravating factors relevant to the assessment of damages include the following:

a)       Mr.
Shaw was Ms. Corfield’s immediate supervisor and so stood in a position of
power in relation to her.  This was amplified somewhat because she was a young
apprentice and he was 15 years older.  He was responsible for the assignment of
work at Baker Industries and enjoyed a significant amount of authority
regarding the day-to-day operations of the business.  Ms. Corfield relied on
Mr. Shaw for advice and training.  She was reluctant to complain about his
conduct because of concerns for her job security and professional development.

b)       Mr.
Shaw frequently assigned Ms. Corfield to jobs where he was working.  She was
thus placed in a position of vulnerability as they were often the only people
working on site.

c)       The
Assaults were frequent.  There were nine incidents in six months.

d)       Mr.
Shaw repeatedly groped Ms. Corfield and some of the Assaults involved the use
of force.  His sexual advances were quite aggressive and she was forcibly
restrained on three occasions.  He ignored her persistent pleas for him to
leave her alone.  On one occasion he put his hand under her shirt.

e)       The
Assaults persisted even after Mr. Shaw learned of Ms. Corfield’s Childhood
Abuse, and knew, or ought to have known, that his conduct would be harmful to
her.

f)        Mr.
Shaw has shown no remorse.

[115]     While
there are a number of aggravating factors, the circumstances of this case are
quite different from those in Y. (S.); C.C.B.; and B.P.B.,
where the abuser was a father or person in a fiduciary relationship to the
plaintiff.  The parties were adult co-workers and Mr. Shaw was not in a
position of trust.  Further, the assessment must take into account Ms.
Corfield’s current condition.  She is mildly anxious, moderately depressed and
her condition is amenable to treatment.  It is likely she will return to her
pre-existing condition with continued counselling and the passage of time.  In
addition, the assessment must take into account the impact of the Assaults on
Ms. Corfield’s life.  While I accept that she has suffered ongoing emotional
and psychological trauma, she has been able to function reasonably well in both
her personal and working life.  As I will discuss below, I do not accept Ms
Corfield’s contention that her failure to pass the Interprovincial Exams is
related to the Assaults.

[116]     In these
circumstances, an appropriate award for non-pecuniary damages including the aggravating
circumstances is $70,000.  This must be reduced to take into account Ms.
Corfield’s pre-existing condition.  A deduction of 15% results in an assessment
of $59,500.  I will round that up and award the sum of $60,000 for
non-pecuniary damages.

Income Loss

Past Income Loss

[117]     Ms.
Corfield says that she was forced to leave Baker Industries because of the Assaults. 
She wanted to continue to work in Duncan and so looked for work in her field. 
She quickly found a new job but at a rate of $10 per hour.  She was earning $17
per hour at Baker Industries.  She argues that she should be compensated for
any loss she suffered as a result of taking the lower paying job.  The loss was
incurred for at least three years as her hourly rate did not increase as
quickly as it should have because of her anxiety and inability to focus.  She
also blames her three failed attempts to pass the Interprovincial Exams on her
continuing symptoms.  She seeks $30,000 for past wage loss.

[118]     The
defendants argue that Ms. Corfield failed to mitigate her loss.  They say she
chose to remain in Duncan and did not attempt to find employment at a higher
level of compensation.  They challenge her assertions that she has not
performed well at her job.  They note that Ms. Corfield did not call evidence
from her current employer.  Mr. Watkins, a current co-worker confirmed that she
was laid off because of work shortage and not job performance.  The defendants
also argue that her failure on the Interprovincial Exams is likely related to
Ms. Corfield’s own aptitudes, comprehension, or test-taking abilities.  The
defendants say the past income loss claim should be approached as a
constructive dismissal claim.  On that basis, Ms. Corfield should only receive
a modest amount equivalent to one month’s notice.

[119]     There is
no dispute about the underlying principle applicable to income loss claims.  A
plaintiff should be placed in the position she would have been in had the tort
not occurred.  Approaching the past income loss as a constructive dismissal
claim would not do that.  Ms. Corfield had a good job in Duncan which she was
anxious to keep.  She left the job because of the Assaults.  Her decision to do
so was reasonable and, indeed, the only logical course available to her.  Baker
Industries is a small family company and Mr. Shaw held a prominent position in
the company and was the stepson of the owner.  In these circumstances, her loss
of the Baker Industries job was a foreseeable consequence of the Assaults for
which Mr. Shaw is liable.

[120]     Ms.
Corfield’s decision to take the position in Duncan soon after leaving Baker
Industries was also reasonable.  She wanted to continue to work at her chosen
occupation in her home community.  There was no suggestion that she could have
found other plumbing work in Duncan.  Given her vulnerability after the Assaults,
it is reasonable and understandable that she would stay at the new job once she
settled in.  Accordingly, I do not accede to the defendants’ argument that Ms.
Corfield failed to mitigate her loss in the period after she left Baker
Industries.

[121]     Ms.
Corfield’s annual income from 2005 to 2010 was:

[122]     It is
difficult to determine how much she would have earned had she stayed at Baker Industries. 
Her income was based on hours worked which depended on the work available.  Ms.
Corfield’s suggestion that she could have earned $40,000 per year starting in
2006 seems unrealistic.  If she worked a 35 hour week at $17 per hour while at
Baker Industries she would have earned approximately $31,000 per year.  That is
only $7,500 more than she earned at her new job.  I will assume for the purpose
of calculating her past loss that her income lagged behind what she would have
earned at Baker Industries for three years.  I also assume that by 2009 her
hourly rate had increased to a level similar to what it would have been at
Baker Industries.  Accordingly, I award $22,500 to Ms. Corfield for past income
loss.

[123]     I have not
included in this award any amount arising from Ms. Corfield’s failure to pass
the Interprovincial Exams to obtain her ticket as a journeyman plumber.  There
are many possible reasons why she did not pass the Interprovincial Exams.  She
may have lacked the required technical knowledge or lacked proficiency in
writing exams.  She may have difficulties with comprehension that are
unconnected to her emotional trauma.  It does seem unusual that someone who has
worked as a plumber for six years is not able to pass the Interprovincial Exams. 
However, it would be pure speculation to conclude that her failure is related
to the Assaults.  She did not present evidence of her scholastic abilities or
achievement in high school or at Malaspina College.  None of her current
supervisors gave evidence regarding her plumbing skill, aptitude or knowledge. 
There was no evidence regarding the normal failure rate on the Interprovincial Exams. 
Without such evidence, I must conclude that Ms. Corfield has failed to prove
that her inability to pass the Interprovincial Exams was caused by the Assaults. 
Accordingly, I am not awarding any amount for past income loss that is
predicated upon her failure to obtain her plumbing qualification.

Future Income Loss

[124]     Ms.
Corfield also seeks damages for a loss of future earning capacity.  This claim
is based primarily on her failure to pass the Interprovincial Exams.  She
argues that she will continue to earn less than she would have because she has
not obtained the journeyman qualification.  She blames the failure on the
restrictions imposed on her employment given her emotional and psychological
needs.

[125]     There are
two reasons why this claim cannot succeed.  First, it is based primarily on Ms.
Corfield’s continuing failure to pass the Interprovincial Exams.  I have
already concluded there is no causal connection between that failure and the Assaults. 
Second, I have concluded that Ms. Corfield’s ongoing vulnerability to suffering
intense emotional affect from stressful events is a pre-existing condition
caused by the Childhood Abuse.  To the extent that Ms. Corfield is susceptible
to having future stressful events which might impact her ability to earn
income, it is very likely that will be caused by the pre-existing
vulnerability.  Accordingly, I decline to make any award for loss of future
earning capacity.

Punitive Damages

[126]     Ms.
Corfield argues that Mr. Shaw’s conduct is deserving of additional punishment
over and above the award of compensatory damages.  She says that his actions
were malicious and should be considered offensive by the court.  Further, Mr.
Shaw has not been subject to criminal sanctions and has failed to demonstrate
remorse.  In these circumstances, she says an award of $40,000 is appropriate.

[127]     The
defendants argue that no punitive damages should be awarded as the non-pecuniary
damage award must include an appropriate amount to compensate Ms. Corfield for
any aggravating factors.  They argue that Mr. Shaw did not breach any trust,
and that the Assaults were not as invasive as those in cases where punitive
damages have been awarded.  In short, they argue that there is no need in the
circumstances of this case for further punishment.

[128]    
Punitive damages are to be awarded in exceptional circumstances for the
purposes of denunciation, deterrence and retribution: Whiten v. Pilot
Insurance Co., [2002] 1 S.C.R. 595 and Hill v. Church of Scientology of
Toronto, [1995] 2 S.C.R. 1130.  In Hill, the Court set out the
proper approach to punitive damages at para. 196:

Punitive damages may be awarded
in situations where the defendant’s misconduct is so malicious, oppressive and
high-handed that it offends the court’s sense of decency. Punitive damages bear
no relation to what the plaintiff should receive by way of compensation. Their
aim is not to compensate the plaintiff, but rather to punish the defendant. It
is the means by which the jury or judge expresses its outrage at the egregious
conduct of the defendant. They are in the nature of a fine which is meant to
act as a deterrent to the defendant and to others from acting in this manner.
It is important to emphasize that punitive damages should only be awarded in
those circumstances where the combined award of general and aggravated damages
would be insufficient to achieve the goal of punishment and deterrence.

[129]     In Pawlett,
the Alberta Court of Appeal reduced the trial award of punitive damages in the
amount of $50,000 to $5,000.  However, the non-pecuniary damage award was
$25,000 for assaults that had some similarity to the assaults here.  In B.P.B.,
the Court of Appeal upheld the trial judge’s refusal to award punitive
damages.  Other courts have declined to award punitive damages for sexual
assaults: W.R.O. v. P.A.M., 2003 BCSC 1677; W.M.Y. v. Scott,
2000 BCSC 1294; and T.S. v. J.W.P., [1999] B.C.J. No.  709 (S.C.).

[130]     Many of
the factors that would support an award of punitive damages in a sexual assault
case must be considered as aggravating factors in the assessment of
non-pecuniary damages.  As a result, courts considering a claim for punitive
damages must be careful to avoid any duplication in the award.  The best
approach is to consider whether there are grounds for punitive damages only
after pecuniary and non-pecuniary damages have been assessed.  If the conduct
of the defendant calls for punishment over and above the requirement to pay
pecuniary and non-pecuniary damages, punitive damages may be appropriate. 
However, as noted by the Court of Appeal in Huff v. Price (1990), 51
B.C.L.R. (2d) 282, at 300: “[t]he award of punitive damages should not try to
do again what has been done by the compensatory damages”.

[131]     The
question I must consider is whether the combined award of non-pecuniary damages
and aggravated damages is sufficient to appropriately punish Mr. Shaw and deter
him and others from similar behaviour.  The factors to consider include: Mr.
Shaw’s moral culpability; the amount he has been ordered to pay for
compensation; his ability to pay the compensatory award and any punitive damage
award; the amount he has profited by his wrongdoing; whether a criminal penalty
has been imposed; and whether he will be penalized professionally or personally
in any other way as a result of the finding of liability in this case.

[132]     When I
apply those factors to Mr. Shaw’s situation, I conclude that the compensatory
damage award combined with the publication of these reasons for judgment
provides sufficient punishment and deterrence in the circumstances of this
case.  I have arrived at this conclusion primarily because I have attempted by
way of the non-pecuniary damage award to express how the court’s sense of
decency has been offended by the aggravating factors set out in para. 114 above. 
These are the same circumstances for which punishment and deterrence is
required.  An additional award of punitive damages would thus duplicate that
award.

[133]     Mr. Shaw
has not received any criminal penalty as no prosecution was initiated by Ms.
Corfield.  However, Mr. Shaw did not and will not profit in any way from his
actions.  More likely, he will always regret those actions.  This is
particularly the case given the publication of these reasons for judgment.

[134]     The final
factor I have considered is Mr. Shaw’s means to pay any award of damages.  I
have not been provided with direct evidence on his financial situation.  However,
as a plumber working in a small family business in Duncan, it is unlikely that
his income is substantial.  I can infer that the damage award will be a
significant burden on him.  When I take all of these factors into account, I
conclude that the non-pecuniary damage award serves the purpose of
denunciation, deterrence and retribution and so I decline to award an
additional amount as punitive damages.

Cost of Future Care

[135]     Ms.
Corfield seeks an award of $10,000 to provide for future counselling.  She
bases this claim on Dr. Bruce’s recommendations.  However, as the defendants
note, Dr. Bruce recommends 12 further sessions at a cost of $150 and says that
an award of $2,000 would thus be sufficient.  It is difficult to estimate how
many counselling sessions Ms. Corfield will require, but in light of Dr.
Bruce’s opinion that Ms. Corfield’s condition should respond to treatment, I
award the sum of $3,000 for the cost of future care.

Special Damages

[136]     The
defendants did not take issue with the special damage claim of $1,273.

Summary

[137]     In
summary, I find that Mr. Shaw sexually assaulted Ms. Corfield on the nine
occasions described by Ms. Corfield, and that the emotional and psychological
difficulties she has experienced since 2005 were caused or contributed to by
the Assaults.  Neither Mr. Baker, as the manager of the business, nor the
employer, Baker Industries, is directly liable for the actions of Mr. Shaw. 
Baker Industries is not vicariously liable.

[138]     Ms.
Corfield is entitled to the following damage awards:

[139]     Ms.
Corfield is also entitled to her costs for the trial.  If the parties are
unable to resolve the terms of the order as to costs, they may provide me with
written submissions on that issue on a schedule to be arranged through trial
scheduling.

“Butler J.”