IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140612

Docket: S097761

Registry:
Vancouver

Between:

C.D.M.

Plaintiff

And

R.G.L., Trustee of
the estate of J.A.W., deceased, and I.M.

Defendants

Before:
The Honourable Madam Justice B.J. Brown

Reasons for Judgment

Introduction

[1]            
The plaintiff, D.M., seeks damages against the estate of her deceased
step-father, J.W., and against her mother, I.M., arising from their treatment
of her when she was a child.

[2]            
The plaintiff claims against the estate of J.W. for sexual assault and
breach of fiduciary duty.  She claims against I.M. for breach of fiduciary duty
for failing to protect her from the sexual assaults of J.W.  The plaintiff says
that she was significantly injured by the conduct of J.W. and I.M.  She seeks
non-pecuniary damages, past and future wage loss, loss of earning capacity,
cost of future care, aggravated damages and punitive damages.

[3]            
I.M. concedes that if the allegations that the plaintiff makes against J.W.
are accepted, then they are not governed by any limitation defence and would
constitute a tort and a breach of fiduciary duty.  However, she disputes that
the incidents took place.

[4]            
She argues that, in any event, she should not be liable for failing to
protect D.M. from the initial incident.  She says that there may have been
signs or suspicions in the days or weeks immediately before the incident, but
the import would only become apparent in retrospect.  She says that she
contacted police and met any fiduciary duty that she owed to her daughter.

[5]            
She concedes that a reasonable person would have come to the conclusion
that J.W. engaged in some type of sexual conduct with the plaintiff in November
1967.  She concedes that she probably believed that something had occurred, but
she was willing to give J.W. the benefit of the doubt for three reasons:

1.       he denied doing anything;

2.       he was not criminally
sanctioned; and

3.       the plaintiff was
medically examined but no injuries were found.

[6]            
She justifies her willingness to give J.W. the benefit of the doubt for
the following four reasons.  She had moved many times in the preceding decade
with her two small children.  J.W. was able to provide her and the children
with an income.  She says that she saw no viable alternative to staying in the
relationship with J.W.  She was afraid to leave J.W. and worried that he would
be violent to both her and the children if she did leave.

[7]            
She argues that she fulfilled her fiduciary duty to the plaintiff
because:

(a)      she contacted police
following the first incident;

(b)      to her
mind, there were several reasons why J.W. may not have assaulted the plaintiff;

(c)      staying
with J.W. was the best option for the family as he was able to provide for
them;

(d)      she had
moved from residence to residence and lived in poverty before moving in with J.W.;

(e)      the
plaintiff does not suggest that sexual contact took place for at least 6 years
after the first incident, which confirmed her reasonable conclusions that if
the incident happened in 1967, it was an isolated one;

(f)       the
plaintiff did not complain to her about any incidents subsequent to the first
one, at the time.

[8]            
She argues that the claim for breach of fiduciary duty for failure to
protect the plaintiff should be dismissed.

[9]            
Alternatively, she argues that the damages suffered by the plaintiff
stem largely, if not entirely, from the first incident in which she was not in
a position to protect the plaintiff.

[10]        
Finally, she argues that if liability is found, the total of
non-pecuniary damages including any claim for aggravated damages, should be
assessed in the range of $30,000 – $40,000.

[11]        
R.L. is named as the Trustee of J.W.’s estate.  She is the plaintiff’s
half-sister and the daughter of J.W. and I.M.  In her statement of defence she denies
that she is the Trustee of J.W.’s estate and says that the estate was a small
estate, with a value of less than $10,000 and was administered as a small
estate.

[12]        
She denies all of the plaintiff’s claims.

[13]        
When giving evidence, she said that she was prepared to share the money
she received from her father, but wanted the court to determine how the estate
should be shared.

Evidence

[14]        
D.M. testified that she is now 52 years old.  I.M. is her mother and she
has a brother, T.M., who is 55 years old.  Her mother separated from their
father when she was a young child.  She also has a half-sister, R.L., who is
younger than her by 12 years.  R.L.’s father was J.W.

[15]        
D.M. lived with her mother and one or more of her siblings until she was
18 years old.

[16]        
Her mother and J.W. started living together when she was less than 5
years old.  They lived in various run-down accommodations in Vancouver,
initially with someone called Walter, who was a bootlegger.  They lived in
Walter’s basement suite for a short period of time.  D.M. would sometimes wake
up with people sleeping across her feet.  They had to go upstairs to use the
washroom.  Next they moved to a house at Broadway and Oak.  The house was in
rough condition with broken windows and had pigeons and rats inside.  They then
moved to a one bedroom apartment on West Broadway.  Her mother and J.W. slept
in one bed and she slept in a single bed beside them.  T.M. slept in the
living-room.  After this, they moved to the projects at 33rd – 37th Avenues and
Main Street.  Next they moved to 132 West 11^th Avenue and lived in a
bungalow.  Finally they moved to 133 West 11^th Avenue when D.M. was
approximately 6 years old.  Her brother slept in the kitchen and she slept in a
closed-in porch.  Her mother and J.W. slept in a bedroom beside the porch.  She
entered her sleeping area through their bedroom and she had no door.

[17]        
She describes an incident when she was about five years old.  She was
sleeping in the bed with J.W. and her mother.  J.W. took her hand and placed it
around his penis.  Her mother, who was laying on J.W.’s other side, reached
over and felt D.M.’s leg.  J.W. then flipped I.M.’s hand off and some words
were exchanged.  Sometime later that night he took D.M. to the bathroom and
lifted her nightdress.  He pulled off her underwear and applied Brylcreem to
her genital area and tried to penetrate her.  Her mother walked in at that
point and said “Oh J. – oh God – what are you doing?”

[18]        
D.M. was examined at the hospital and was interviewed by police.  She
attended J.W.’s trial, but was too frightened to speak, so she did not give
evidence.

[19]        
J.W. did not live with them between the incident and the trial; however,
he returned after the trial.

[20]        
After J.W. returned to the family home, he continued to abuse D.M.  He
would make rude gestures with his finger.  He would grope her.  He would grab
at her breasts and crotch on a regular basis.  He would masturbate in front of
her.  He would expose himself when she had to go through their room to get to
her bedroom.  He would get her to go downstairs to burn the garbage and when
she arrived downstairs, he would be masturbating.  On one occasion she called
her mother.  Her mother was lying on the couch and simply responded “what?”.  Her
mother did not come downstairs to investigate.  When D.M. went upstairs after,
her mother just looked at her as if she was being a bother.  On one occasion, her
mother witnessed J.W. pinch her breast.  Her mother said “just go to your
room”.  These activities continued until they moved out of the house.

[21]        
J.W. was also physically abusive.  He would kick her on the backside
with his boots.  He would also assault her brother and her mother.  On one
occasion, he beat her mother badly and she was taken to the hospital.

[22]        
D.M. describes her mother as feisty, tough and intimidating.  She said
that she had no relationship with her mother when she was a small child, that
her mother was not one to be interested in the events of a child’s life.  She
did not give physical contact such as hugs.  She would reprimand, pull hair,
spit and throw things on the floor.  J.W. worked outside of the house.  Her
mother did not.  On the weekend, she and her brother would be left alone.  J.W.
and her mother would leave around 11:00 a.m. to noon on Saturday and come
back late at night.  Sometimes they would be left in the lobby of a theatre or
would watch the same movie all day.  Sometimes they would be left at
Save-On-Meats or at a Chinese restaurant.  This happened frequently; they were
left alone every weekend.  D.M. said that she did not remember a weekend
when J.W. and her mother did not leave them alone.  She said that they told her
and her brother that they were going shopping but “we knew what they were
doing, they would obviously come back intoxicated”.  When the children were
left at home, they were told not to use the stove and could only eat what was
in the fridge.  They were not permitted to leave the house and they were not
permitted to answer the door.

[23]        
Aside from the first incident, D.M. did not speak with her mother about
the assaults when she was a child.  Her mother was unapproachable.  As an
adult, approximately 10 years ago, her mother took her out to the patio and
they discussed what had happened.  She told her mother that she wanted to take J.W.
to court.  Her mother responded that he would have to sell his house and there would
be nothing left for her sister.  On another occasion, in 2006, she phoned her
mother because J.W.’s house had caught fire and she had seen him on
television.  She talked to her mother about wanting to take J.W. to court
again.  Her mother responded that she should get on with her life and get over
it.  After that, she had no further discussions with her mother.

[24]        
D.M. did not do well in school and only went to Grade 8.  In her view,
she could and would have done better had her mother left J.W.  She is not able
to concentrate and is not able to form proper relationships with people.  She
has never married although she has had two partners.  Her first relationship began
when she was 16 or 17 years old with J.S.  She had two children with him.  He
became a Hell’s Angel and now resides in a maximum security prison in Ontario. 
Her second partner was P.K.  She has lived with him since 1997, although not
for the last three years.  They still own a home together and are not formally
separated.

[25]        
She has a relationship with her two children and their children although
she says that her relationship with them is not normal.  She feels disconnected
from them.  It bothers her that she is not able to form warm relationships with
her children and grandchildren.

[26]        
She left school after Grade 8 and went to work at a variety of
cafeterias and restaurants.  When she was approximately 28 or 29 years old she
went to work for a retail store and worked her way up to relief manager.  She
became a member of the re-set team and helped close stores and set up new
stores.  Eventually, she left that position because she felt that she was not
able to follow through and would forget what she was doing.  She just couldn’t
take it anymore.

[27]        
She then moved to Vernon where, as she says, she had a meltdown.  She
was offered a place to stay without a phone or television, so she moved there
to clear her head.  She could not deal with problems anymore.  She lived in
Vernon for two years and returned to the lower mainland in late January, 2012. 
At that time she felt somewhat better.

[28]        
On her return to the lower mainland, she worked for a period at Value
Village, then Loblaws and ultimately returned to the retail store approximately
a year ago.  She is now on call at that store.  She intends to do more.  She
has taken a product knowledge course and hopes to return to the level that she
was at prior to her meltdown when she was a relief manager at that store.

[29]        
She suffers from chronic depression.  She has not had alcohol or drug
issues.  She has taken medication for depression but felt really “spacey” on
the medication so she stopped taking it.  She has been hospitalized for
depression.  She does plan to take further treatment.  Dr. Janke, a
psychiatrist who produced two medical reports and testified at this trial, has
recommended counselling and medication.  In cross-examination, she agreed that
when she had her own children and was working as a waitress, she would leave her
children with her mother to babysit.

[30]        
T.M. also testified.  He corroborated much of D.M.’s description of
their childhood.  He lived with his mother and J.W. until he was 16 years old. 
He confirmed D.M.’s description of their various residences and of their
treatment by J.W. and I.M.  He confirmed that J.W. was physically abusive.

[31]        
He testified that I.M. and J.W. were “poor at best” as parents.  There
was no communication and they had no social skills.  They believed in corporal
punishment.  His mother was cold, lacking affection and would play the children
off against each other.  The children were left on their own more than their
parents were with them.  J.W. and I.M. would go to bingo on Fridays and to the
legion to drink.  They were worse if it was a payday or a welfare weekend.  He
confirmed D.M.’s evidence about being left at the theatre, a restaurant or the
hotel lobby while his mother and J.W. drank.  Eventually they were just left at
home where they were not allowed to use the stove and were not allowed to go
outside.

[32]        
He describes life at J.W.’s house as “crazy” partying.  At 5:00 a.m. or
6:00 a.m. there would be loud drunken fights.  The children would wake up
with people passed out in the house.

[33]        
D.M. was a quiet, shy girl.  She became moody and in the last 8-10 years
has become progressively worse with longer periods of depression and more mood
swings.

[34]        
R.L. testified that she lived with her mother and J.W. until she was 2
or 3 years old.  She does not have much memory of living with J.W.  After they
left J.W.’s house, they moved across the street and later moved to the projects
at 37^th Avenue and Main Street.  She stayed with her mother in the
projects until she was 16.

[35]        
She had a good relationship with her mother who was working by that time.
She maintained some contact with J.W. and visited him approximately once a week
until she was in grade 7, but did not stay with him again.

[36]        
I.M. testified that she was born in 1940 in Bradford Yorkshire, England. 
She moved to Canada in 1954.  She now lives in Abbotsford with her husband, J.
L.  When she was in her 40’s she went to Vancouver Vocational Institute to
train for geriatric nursing.  She eventually started working for Canada Post
and worked there for 21 years.

[37]        
She married D.M. and T.M.’s father, C.M., when she was 17.  They were
married for 7 years, but together on and off.  It was not a happy relationship. 
He was abusive, an alcoholic and they were on and off welfare.  They constantly
moved.  She finally separated from C.M. and moved to Dawson Creek.  Eventually,
she returned to Vancouver where she met J.W. through his sister Mary.  She
wanted a man for protection from C.M., so she told J.W. that he could move in
with her.  He moved in with her two weeks after she and the children arrived in
Vancouver.  She had no plans to stay with him, although their relationship
probably developed right away.

[38]        
She was not married to J.W.  He was horrible when he was drinking.  He
was physically violent to her on one occasion.  She called the police whenever
he threatened violence.  They were together for 12 years.

[39]        
She called police for “the episode with D.M.”.  She said that one night
she was in bed and she heard a noise in the bedroom.  J.W. brought D.M. back
into the bedroom crying.  I.M. thought something was wrong.  She called police
from a pay phone the following day.  She also took D.M. to the hospital in a
taxi for a physical exam.

[40]        
After J.W. was charged, police took him away.  His trial took place on January
18, 1968.  I.M. attended with D.M.  When it came time for D.M. to give
evidence, she would not say anything so the case was dismissed.

[41]        
J.W. returned to the house approximately 4 hours after the trial
concluded.  When I.M. asked J.W. about the incident, he said “oh, I probably
got into the wrong bed”.  They said nothing further about it.

[42]        
She denied that J.W. was violent with D.M. after his return.  She said they
ignored each other.

[43]        
Her relationship with J.W. was not happy.  She was under doctor’s care
taking Librium and Ativan.  She stayed because she was fed up with moving and
even if she moved, he would find her.  Welfare would give him their address and
he would start pestering her again.  She thought he would be violent.  He was
very jealous.

[44]        
In 1977 she left with D.M., R.L. and T.M. and moved directly across the
street.  She took R.L. to see J.W. regularly until R.L. was 13 or 14 years
old.  She cleaned J.W.’s house on one occasion when R.L. was 6 or 7 years old.

[45]        
She denied the substance of the evidence of D.M. and T.M. about her
drinking with J.W. and leaving the children alone.  She said that for the first
year, she would go downtown with him, but she didn’t like drinking in scrubby
pubs.  She said that they would put the kids into a show for the Saturday
matinee at the Lux theatre, and they would go out and leave the kids alone when
they were 8 and 10 years old.  They did have babysitters for the children.

[46]        
She denied that she saw J.W. sexually abuse D.M., use sexual words or
gestures, grab D.M. or expose himself.

[47]        
J.W. was a good provider.  Life with J.W. was better than being on
welfare.

Medical Evidence

[48]        
The plaintiff produced two reports from Dr. Janke, a psychiatrist who
has been involved in the assessment and treatment of victims of sexual assault.

[49]        
In his first opinion dated August 25, 2008, he attributes the
plaintiff’s poor sexual functioning and limited physical intimacy to the sexual
abuse she experienced.  She has been able to avoid severe depression and
substance abuse but does report a chronically depressed mood.  He recommended a
prolonged period of therapy over one or two years and said that it was likely
that she would require anti-depressant medication.  In his opinion, she would
likely have persisting symptoms over the course of her life and intermittently
require sessions with a psychologist.

[50]        
Dr. Janke’s second report is dated September 22, 2011.  At that time,
the plaintiff had started litigation and found dealing with the abuse through
litigation like “tearing off [her] wounds”.  She was still depressed and lacking
in emotional response to her family members.  He recommended that after the
initial intensive therapy sessions, she be provided with an additional 10-20
sessions with a psychologist, spread over her life.

Issues

[51]        
This action raises the following issues:

1.       did J.W.
sexually assault D.M.?

2.       did
J.W. breach his fiduciary duty to the plaintiff by sexually assaulting her and did
I.M. breach her fiduciary duty to D.M. by failing to protect her?

3.       if so,
what are the appropriate damages?

Did J.W. Sexually Assault D.M.?

[52]        
I accept D.M.’s evidence that she was sexually assaulted as she says. 
As I have indicated, much of her evidence is supported by the evidence of her
brother, T.M. Although he did not witness any of the sexual abuse, he does
describe their childhood in similar terms to those of D.M.

[53]        
I do not accept I.M.’s evidence.  I.M. was not a credible witness.  She
was defensive and extremely confrontational.  She clearly has a volatile
temper.  When she was in the body of the courtroom I had to remind her at times
to be quiet or she would have to leave the courtroom.  On some occasions she
did leave the courtroom.

[54]        
I do not accept that she called the police because of her “mother’s
intuition”.  It makes no sense that she would be so suspicious of J.W. that she
would call the police and yet after he was acquitted, “give him the benefit of
the doubt” and admit him back into the house.  This is not consonant with human
experience.  Rather, I prefer the evidence of D.M.  I accept that I.M.
witnessed J.W. assaulting D.M. in the bathroom and that was why she called the
police.  After he was acquitted, he returned to live with I.M. as he had
before.  As she said repeatedly during the trial, he was a good provider.  She
preferred to stay with him and accept his money than to move out.  I accept the
evidence of T.M. and D.M. that I.M. was not a caring, nurturing mother.  She
herself was distant and abusive.  She and J.W. drank heavily.  It was just
easier to continue to live with J.W. who was a good provider, than it was to
move out with her children.

[55]        
I also do not accept I.M.’s evidence that she was afraid of J.W.  This
too makes no sense, given that a few years later when she left J.W., she moved
directly across the street.  If she were truly afraid of J.W., she would not
have moved directly across the street from him.  Moreover, in the years that
they lived together, she repeatedly called the police when he threatened her. 
This too shows that she was not particularly afraid of or dominated by J.W.

[56]        
In conclusion, I accept D.M.’s evidence
that J.W. started sexually assaulting her when she was approximately 5 years
old.  He attempted penetration.  Thereafter, for as long as she lived with him,
he continued to sexually abuse her, masturbating in front of her, inveigling
her to go downstairs into the basement with him, exposing himself, grabbing at
her breasts and crotch, on one occasion in I.M.’s presence.

[57]        
I accept the submissions of the plaintiff that this conduct constitutes
the tort of sexual assault.

Did J.W. breach his fiduciary duty to the plaintiff by sexually assaulting
her and did I.M. breach her fiduciary duty to the plaintiff by failing to
protect her?

[58]        
The plaintiff argues that parents owe their children a fiduciary duty. 
They are obliged to take steps to protect their children from harm from sources
that the parents actually know about or foresee or ought reasonably to know
about (J.(L.A.) v. J.(H.) (1993), 102 D.L.R. 4th 177 at 181).

[59]        
I accept the law as stated in Brooks v. British Columbia, 2000
BCSC 735, varied on issue of crown liability 2001 BCCA 227 and damages 2002
BCCA 142, rev’d 2003 SCC 53:

1.         Fiduciary Duty of Parents to Children

[108] There is no dispute that the relationship of parent and
child is fiduciary in nature. In M.(K.) v. M.(H.), [1992] 3
S.C.R. 6; 14 C.C.L.T. (2d) 1 at 43, LaForest J. (Gonthier, Cory and Iacobucci
JJ. concurring) wrote:

The inherent purpose of the family
relationship imposes certain obligations on a parent to act in his child’s best
interests, and a presumption of fiduciary obligation arises.

[109] The fiduciary relationship is characterized by the
profound vulnerability of the child, on the one hand, and by the power and
authority of the parent, on the other. The child is at the mercy of the parent.
The parent-child relationship is one example of the characteristics
attributable to fiduciary relationships generally, as described in Frame
v. Smith, [1987] 2 S.C.R. 99 at 136 (per Wilson J.), adopted with
approval by La Forest J. in M.(K.) v. M.(H.) at p. 42 (C.C.L.T.):

(1) The fiduciary has scope for the
exercise of some discretion or power.

(2) The fiduciary can unilaterally
exercise that power or discretion so as to affect the beneficiary’s legal or
practical interests.

(3) The beneficiary is peculiarly
vulnerable to or at the mercy of the fiduciary holding the discretion or power.

[110] In M.(K.) v. M.(H.) at p. 44, La Forest
J. refers approvingly to the following comments of the Supreme Court of
California in Emery v. Emery, 289 P.2d 218 (Cal. 1955) at p. 224:

Since the law imposes on the parent
a duty to rear and discipline his child and confers the right to prescribe a
course of reasonable conduct for its development, the parent has a wide
discretion in the performance of his parental functions, but that discretion
does not include the right wilfully to inflict personal injuries beyond the
limits of reasonable parental discipline.

[111] Sexual or physical abuse by a parent of his or her
child is a breach of the obligation of parents to care for, protect and rear
their children: M.(K.) v. M.(H.) at p. 40 (per La Forest J.); J.(L.A.)
v. J.(H.) (1993), 13 O.R. (3d) 306 at 313 (Ont.Ct. Gen.Div.).

[112] …the fiduciary duty
extends to "everyone charged with responsibility for the care of
children…."

[60]        
There is no doubt that I.M. stood in a fiduciary relationship to her
daughter, as did J.W., as her step-parent.  In addition to committing the tort
of sexual assault, by sexually assaulting her, J.W. breached his fiduciary duty
to her.

[61]        
I.M. argues that there was only one sexual assault and while there may
have been signs or suspicions in the days or weeks immediately before the
incident, the import of these signs and suspicions would only have become
apparent in retrospect.  She concedes that a reasonable person would have come
to the conclusion that at least some sexual activity had been perpetrated by J.W.
on D.M., given the events of November 1967.  However, relying on B(P). v.
V.E.(R), 2007 BCSC 1568 at para. 244, she argues that whether a
parent can be in breach of her fiduciary duty for failing to protect or to
prevent the sexual abuse of her child will turn on the facts of each individual
case.

[62]        
She acknowledges that the onus lies on her as a fiduciary to demonstrate
that she did not have the ability, awareness or means to act (K.K. v. K.W.G.,
[2006] O.J. No. 2672 (Sup. Ct. J.) at para. 55, varied on damages 2008 ONCA 489).

[63]        
She says that she should not be found in breach of her fiduciary duty to
D.M. for the following reasons:

(a)      as soon
as she became suspicious of the 1967 incident, she contacted police;

(b)      to her
mind, there were several reasons why J.W. might not have assaulted D.M.;

(c)      this
allowed her to conclude that the best option for her family was to continue the
relationship with J.W. who was able to provide for the family;

(d)      she had
had a nomadic existence.  She said she suffered from anxiety.  She said she was
afraid of J.W. and what he might do to her if she left him.  She testified that
the social safety net did not offer a viable alternative.  She argues that she
faced a no-win situation;

(e)      their
living situation continued to improve between 1967 and 1973 because J.W. was
able to afford to buy a home;

(f)       D.M.
did not report any further sexual contact for at least 6 years;

(g)      D.M.
has admitted that she did not complain to I.M. at this time.

[64]        
She argues that for these reasons, the claim against her for breach of
fiduciary duty for failure to protect D.M. should be dismissed, or
alternatively, that the damages suffered were substantially from the 1967
incident.  She says that even if she were in breach of her fiduciary duty
thereafter, that no damage flowed as a result.  The damage was already
suffered.  She argues that damages that flow from any breach are divisible from
those that are suffered as a result of J.W.’s actions and that damages against
her should be apportioned accordingly.

[65]        
I reject these submissions.  In my view, I.M.’s attempt to characterize
herself as a victim unable to act is an after-the-fact justification.  As
indicated above, I have rejected her evidence in this regard.  There is no independent
evidence to support her story that she was “under a doctor’s care” and was
taking prescription drugs.  I have rejected her evidence that she was too
frightened of J.W. to move away.  I also reject her evidence that there was no
viable social safety net.  She availed herself of the social safety net on many
occasions, even before she met J.W.  I also reject the submission that she
stayed to benefit the entire family or that the children’s circumstances were
improved by living with J.W. D.M. and T.M. each testified about their deplorable
childhood living with their mother and J.W.

[66]        
Following the bathroom incident in November 1967, I.M. was certainly
aware of the danger that J.W. posed to D.M.  Yet, she chose to continue to live
with him and expose D.M. to that danger.  In doing so, she chose her interests
over those of D.M. and was in breach of her fiduciary duty.  As I have
indicated above, the sexual assaults continued after J.W. returned to the
family home.  I.M. is clearly an intelligent person.  A person with her
background and capacity would have appreciated the risk.  Indeed, in my view,
it is likely that she was well aware that J.W. continued to sexually abuse and torment
D.M. as D.M. testified.  I.M. simply did not bother to do anything about it.

What are the appropriate damages?

1. Damages against J.W.

[67]        
I will address the liability of R.L., named as trustee of the estate below,
but will first address the amount of damages which would be appropriate.  The
plaintiff seeks non-pecuniary damages of $300,000 to $400,000; past income loss
of $196,872; future income loss of $57,380; loss of capacity of $150,000; cost
of future care of $7,950 – $16,050; and punitive damages of $170,000.

(a) Non-pecuniary damages

[68]        
With respect to non-pecuniary damages, the plaintiff says that damages
must be assessed by the effect on the victim rather than on the severity of the
assault (P. (S.) v. K. (F.) (1996), [1997] 3 W.W.R. 161 at 168 (Sask.
Q.B.)).

[69]        
The plaintiff refers me to Y (S.) v. C. (F.G.) (1996), 26 B.C.L.R.
(3d) 155 (C.A.).  There, the plaintiff suffered sexual abuse by her step-father
from the time she was 7 until she was 14.  The sexual abuse occurred repeatedly
and was of a very serious nature.  The plaintiff suffered a devastating
experience and the sexual abuse had a profound effect on her life.  The Court
of Appeal reduced non-pecuniary and aggravated damages from $350,000 awarded by
a jury to $250,000 and punitive damages from $250,000 to $50,000.  The
plaintiff also received past wage loss of $50,000.  She was not awarded any
amount for loss of future earning capacity.

[70]        
In T.M.B. v. R.R., 2000 BCSC 1029, the plaintiff was sexually
abused as a child from the age of 8 until 11, by an uncle.  She suffered
touching and oral sex.  Mr. Justice Boyle concluded that had the plaintiff had
a safe childhood, she would have been more regularly employed and better
equipped educationally, better able to establish rapport with employers, with
fellow employees and with the public and therefore better able to move up the
employment ladder.  He awarded non-pecuniary damages of $125,000 (less 30% due
to other causative factors) and $20,000 punitive damages.

[71]        
In C.C.B. v. I.B., 2009 BCSC 1425, the plaintiff was
sexually assaulted by her natural father, her only caregiver, from the age of 5
until she was 9 years old.  The sexual assaults were repeated and very serious.
She was awarded $250,000 in non-pecuniary damages.

[72]        
I have considered the cases provided to me, as well as those referred to
by Madam Justice Gray in C.C.B. I
accept that the general range for non-pecuniary damages for sexual abuse is
between $150,000 and $265,000 in today’s dollars (C.C.B. para. 59, with
adjustment to current dollars). It is difficult to compare the degree
of suffering in these cases and determine a proper award.  Considering the
cases and the evidence before me, in my view, the appropriate award for
non-pecuniary damages is $200,000, which includes aggravated damages (Y.(S.)).
The abuse in this case took place over a prolonged period, but after January
1968, the abuse was less invasive than in many cases.

(b) Past and Future Income Loss

[73]        
The plaintiff seeks an award for past and future loss of income.  She
testified that she quit working for the retail store in 2007, as she could not
handle it anymore.  At that point she had worked for the retail store for 19
years.  She withdrew and lived on her own on a remote ranch for a time, before
returning to the lower mainland.  Her earnings reflect this.  In 2007 she
earned $31,491; in 2008: $5,551; in 2009: $1,668; in 2010: $0; in 2011: $10,194
and in 2012: $20,612.  She attributes her “meltdown” to the fallout from the
sexual assaults.  She says that she has suffered a past loss of income of
approximately $195,000.  She says she will continue to lose income and
estimates $20,000 per year for 2014 through 2016.

[74]        
I accept the evidence of the plaintiff that by 2007 she simply could not
cope anymore, that she quit her job and withdrew for two years.  I accept that
this is the result of the sexual abuse and its effect on her.  Her loss of
income for the period from 2008 through 2012 would be approximately $175,000. 
She has returned to her employment with the retail store and anticipates
working back to the position she was at when she quit.  She will require
therapy as Dr. Janke recommends; however, I anticipate that she will be able to
return to her pre-2007 levels of income in relatively short order.  In my view,
an appropriate award for loss of future earnings would be $30,000, taking into
consideration positive and negative contingencies.

[75]        
In my view, an award of $175,000 for past loss of income and $30,000 for
future loss of income is appropriate.

(c) Loss of Capacity

[76]        
She also seeks an award for loss of capacity.  She says that she was a
poor student and quit school in Grade 8, also because of the sexual assaults. 
She held a series of low-paying jobs after leaving school.  She said that once
she was employed at the retail store, she gradually worked her way up to the
position of relieving the manager, which demonstrates her potential.  She says
that but for the effects of the sexual assault upon her, she probably would
have held higher stature jobs and received better pay.  She says that $150,000
is an appropriate award in this regard.

[77]        
I am not persuaded that the plaintiff has suffered a loss of capacity in
addition to the loss of income as awarded.  The test for loss of capacity is
set out in Repole v. Bakker, 2007 BCSC 592 by Madam Justice
Arnold-Bailey:

[206] Counsel for the plaintiff and the defendants agree that
the applicable law is as set out in Pallos in which Finch J.A.
(as he then was) reviewed various cases and stated at ¶24 to 27:

In addition to those cases cited by
counsel, I would also refer to Kwei v. Boisclair (1991), 60
B.C.L.R. (2d) 393 (C.A.). There Mr. Justice Taggart quoted with approval from Brown
v. Golaiy (supra) as follows (at p. 399):

The means by which the value of the
lost, or impaired, asset is to be assessed varies of course from case to case.
Some of the considerations to take into account in making that assessment
include whether:

1. The plaintiff has been rendered
less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable
or attractive as an employee to potential employers;

3. The plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and

4. The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

In Palmer v. Goodall
(supra) Madam Justice Southin said at p. 59:

Because it is impairment that is
being redressed, even a plaintiff who is apparently going to be able to earn as
much as he could have earned if not injured or who, with retraining, on the
balance of probabilities will be able to do so, is entitled to some
compensation for the impairment. He is entitled to it because for the rest of
his life some occupations will be closed to him and it is impossible to say
that over his working life the impairment will not harm his income earning
capacity.

In Earnshaw v. Despins
(supra) Madam Justice Southin said (at p. 399):

In my opinion, the true questions
the jury must address in a claim such as this are:

1. Has the plaintiff’s earning
capacity been impaired to any degree by his injuries?

2. If so, what amount in the light
of all the evidence should be awarded for that impairment?

As Dickson J., as he then was, said
in Andrews v. Grand & Toy (Alta.) Ltd., [1978] 2 S.C.R. 229
at 251

It is not loss of earnings but
rather, loss of earning capacity for which compensation must be made… A capital
asset has been lost: what is its value?

These cases all treat a person’s capacity to earn income as
a capital asset, whose value may be lost or impaired by injury. It is a
different approach from that taken in Steenblok v. Funk (supra),
and similar cases, where the court is asked to determine the likelihood of some
future event leading to loss of income. Those cases say, if there is a “real
possibility” or a “substantial possibility” of such a future event, an award
for future loss of earning may be made. There is nothing in the case law to
suggest that the “capital asset” approach and the “real possibility” approach
are in any way mutually exclusive. They are simply different ways of attempting
to assess the same head of damages, future loss of income […]

[78]        
I am not able to determine what the plaintiff’s circumstances may have
been without the abuse by J.W.  The plaintiff has had many adversities in her
life including a very poor childhood (quite apart from the sexual abuse); growing
up in a household which did not value education; an unhappy relationship with
her first partner who is a criminal; children at a very young age; grade school
education.  Her half-sister, who by her evidence had a comparatively happy
childhood, a good relationship with her mother and was not sexually abused,
also left school in grade 8.  I am not able to say that the plaintiff would
have enjoyed greater earning capacity, but for the sexual abuse.  Moreover, I
have no evidence as to average earnings for a woman of the plaintiff’s age, so
cannot gauge in even a rough way what earnings might be expected of an
“average” woman of her age.

(d) Cost of Future Care

[79]        
 Dr. Janke recommends that the plaintiff engage in psychotherapy and
suggests 20-30 sessions spread over one to two years, plus a further 10-20
sessions for the rest of her life.  He also recommends treatment with an
antidepressant medication for a minimum of 18 to 24 months.

[80]        
I am satisfied that these treatments are appropriate to address the
psychological consequences of the abuse and $16,000 is appropriate for future
care.

(e) Punitive Damages

[81]        
The plaintiff she seeks punitive damages to punish the wrongdoer and to
deter blameworthy conduct.  She refers me to the decision in R. v. Ewanchuk,
[1999] 1 S.C.R. 330 where the court said at para. 28:

…Society is committed to protecting
the personal integrity, both physical and psychological, of every individual. 
Having control over who touches one’s body, and how, lies at the core of human
dignity and autonomy.

The plaintiff says that the defendants have a net worth of
$1.7 million and that an appropriate award for punitive damages would be
$170,000.

[82]        
I am satisfied on the basis of the legal principles which are set out in
H.O. v. MacDougall, 2006 BCSC 180 at para. 19, that an award of
punitive damages is appropriate in this case.  Moderate awards of punitive
damages are generally sufficient (Bronson v. Hewitt, 2011 BCSC 102 at
para. 40, aff’d 2013 BCCA 367, application for leave to appeal to S.C.C.
discontinued, 35579 (December 18, 2013)).  I award $20,000 for punitive
damages.

2. Award against I.M.

[83]        
I.M. is liable for breach of fiduciary duty for failing to take
appropriate steps to protect the plaintiff from J.W.’s assaults.  The plaintiff
has abandoned her claim against I.M. for failing to provide the necessities of
life and inflicting psychological and emotional abuse.

[84]        
The amount to be awarded against a fiduciary was considered in M.(K.)
v. M.(H), [1992] 3 S.C.R. 6. LaForest J., for the majority said at 80-82:

 Recently, I have had occasion to
consider the relationship between equitable and common law remedies, and in
particular compensation for breach of fiduciary obligation … The distinction
between damages and compensation is often slight… 

The question in
this appeal is whether there are different policy objectives animating the
breach of a parent’s fiduciary duty as compared with incestuous sexual assault.
In my view, the underlying objectives are the same. Both seek to compensate the
victim for her injuries and to punish the wrongdoer. The jury award of general
damages was made with full knowledge of the injuries suffered by the appellant
and her rehabilitative needs. The same concerns would apply in assessing
equitable compensation, and as such I would decline to provide any additional
compensation for the breach of fiduciary obligation. The punitive damages award
should also not be varied in equity.

Similarly, here I am of the view that damages and equitable
compensation should be the same amount.

Miscellaneous Issues

[85]        
The action was brought against R.L. as trustee of J.W.’s estate.  She
denied in her statement of defence and in her evidence that she is the trustee.
She also testified that she was not the executor of her father’s estate.  She
testified that his assets were in joint accounts and she received them on his
death.

[86]        
The issue arises as to whether the funds which R.L. has received from
J.W. were received as a gift during his lifetime or whether they were received
in her capacity as trustee.  In Pecore v. Pecore, 2007 SCC 17, Rothstein
J. for the majority, set out the law pertaining to gratuitous transfers of
assets.  Rothstein J. found that where the gratuitous transfer is from a parent
to an adult child then there is “a rebuttable presumption that the adult child
is holding the property in trust for the ageing parent to facilitate the free
and efficient management of the parent’s affairs” (at para. 36).  The
presumption may be rebutted where there “is evidence of the transferor’s
contrary intention on the balance of probabilities” (at para. 43). Pecore
also sets out how the courts should treat survivorship in the context of joint
accounts:

53        Of
course, the presumption of a resulting trust means that it will fall to the
surviving joint account holder to prove that the transferor intended to gift
the right of survivorship to whatever assets are left in the account to the
survivor. Otherwise, the assets will be treated as part of the transferor’s
estate to be distributed according to the transferor’s will.

[87]        
The parties did not make submissions with respect to the law, and in
particular Pecore. I will require further submissions with respect to
R.L.’s liability and whether she has been properly joined in this action before
I can determine R.L.’s liability.

[88]        
I.M. argues that damages should be reduced because the plaintiff failed
to mitigate her damages by failing to pursue the treatment recommended in Dr.
Janke’s August 2008 report.  There is no evidence and I am not persuaded that
the damage suffered by the plaintiff would have been reduced had she pursued
treatment at that time.

[89]        
I agree with the plaintiff that her injuries are indivisible.  To the
extent that the treatment she received from her mother and J.W. (apart from the
sexual abuse) caused harm to her, it is not possible to distinguish the harm
caused by one from the harm caused by the other.  They concurrently and
materially contributed to the harm she suffered.  It is not possible to isolate
discrete causes and discrete portions of injury. J.W. would be fully liable to
the plaintiff for the injury suffered in tort and in breach of fiduciary duty.  I.M.
is liable for the same amount for breach of fiduciary duty.

[90]        
The plaintiff will have pre-judgment interest on the non-pecuniary award
from the date the writ was issued and pecuniary damages from the date of loss,
as requested.

[91]        
The parties may speak to costs if necessary.

[92]        
The file and exhibits will be sealed.

“B.J. Brown J.”
The Honourable Madam Justice B.J. Brown