IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141010

Docket: S076480

Registry: Vancouver

Between:

Linda Susan
Antrobus

Plaintiff

And

Maureen Ellen
Antrobus, also known as Maureen Ellen Campbell, Committee
of the Estate of William Henry Antrobus, Joan Iris Antrobus, Herman Douglas
Antrobus and Daniel Esplen, Committee of the Person and the Estate of
Shirley Evelyn Antrobus

Defendants

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff’s claim is against her parents, William and Joan Antrobus,
and her uncle, Herman Antrobus and his common-law wife Shirley Antrobus.  She
commenced her action on September 26, 2007.

[2]            
The plaintiff’s central allegation in the endorsement to the original
writ is that, between 1959 and 1960 she was sexually abused and sexually
assaulted by her grandfather, Douglas Antrobus, deceased, and his friend
Farrell Salt, also deceased. Her claim is that the four defendants permitted
Douglas Antrobus to have the opportunity to sexually assault and sexually abuse
her even though they knew he was a “child molester and/or pedophile”.  In doing
so, the plaintiff says the defendants were negligent and in breach of their
fiduciary duty to her.

[3]            
The plaintiff also alleged that her father, William Antrobus, verbally,
psychologically, and physically abused her and “intentionally inflicted mental
suffering” on her by “inappropriate and cruel forms of discipline, verbal
abuse, threatening, berating and belittling”.

[4]            
The Statement of Claim was amended in 2010.  Those amendments included
significant new allegations of sexual assault and sexual abuse on the part of
her father.

[5]            
For the reasons that follow, I find the defendants William and Joan
Antrobus are liable in negligence and breach of fiduciary duty towards the
plaintiff with respect to the harm sustained by Linda Antrobus by the actions
of her grandfather. I find the allegations of abuse by William Antrobus have
not been proved.  I find the allegations against Herman and Shirley Antrobus have
not been proved either.

[6]            
The plaintiff is 62 years of age.  Her parents are 89 and 88
respectively. Her uncle, Herman Antrobus, is 88.  Shirley Antrobus, his wife,
is 85.

[7]            
The plaintiff’s sister, Maureen Campbell is the Committee of the Estate
of William Antrobus.  Daniel Esplen is the son of Shirley Antrobus and is the
Committee of the Estate and Person of Shirley Antrobus.

[8]            
The plaintiff’s grandfather, Douglas Antrobus, was born in 1896.  He
married Marie Corbett (later Ellis), in 1923.  They had three sons, William
(1924), Herman (1926), and Alexander (1927).  Douglas Antrobus and Marie
separated in 1932.

[9]            
Although the evidence is sketchy, it appears that Marie and William
Ellis began a common-law relationship in 1935.  The three children came to
consider William Ellis to be their father.

[10]        
The family lived in Ontario: what was then Fort William, and later in
Toronto.  Marie and William Ellis moved to Vancouver in 1946.

[11]        
The defendant William Antrobus married the defendant Joan Antrobus in
1945.  In 1946 their first of five children, Bruce, was born in Ontario.

[12]        
In 1947 the three of them travelled from Ontario to Vancouver to visit
William’s mother, Marie Ellis.  They stayed for three months.

[13]        
The plaintiff was the second child.  She was born in Toronto on January
19, 1950.  There were three more children: Mark (born September 2, 1953), Craig
(February 20, 1955) and Maureen (December 5, 1956).  Bruce, the oldest son,
died in a motor vehicle accident in 1967.

[14]        
In approximately 1952, Herman Antrobus moved to Vancouver from Ontario. 
He was with his common-law wife, Joyce Meffon, their children Marie (now
Richard) born 1951 and Douglas, born 1952.  They had two more children after
arriving in Vancouver: William (1954) and Donald (1955).

[15]        
By 1956 Herman was single again.  In 1956 he married Margo who brought
her son, Ray Mason to live with them.

[16]        
In June 1957 William and Joan Antrobus moved with the children from
Picton, Ontario, to Vancouver.  Shortly thereafter they settled at 1728 East 62^nd
Avenue in Vancouver.  That fall, the plaintiff was enrolled in grade 2 at
Walter Moberley Annex.

[17]        
Herman Antrobus’ marriage to Margo did not last.  In the summer of 1959
Shirley Esplen moved into his home on West 4^th Avenue to look after
his children.  She brought her sons Ronald and Daniel.  Shirley Esplen, now
Antrobus, became the common-law spouse of Herman and they had two more
children, Karen (1960) and Bruce (1967).

THE ALLEGATIONS OF LINDA ANTROBUS CONCERNING HER GRANDFATHER

[18]        
In 1959 Douglas Antrobus contacted Joan and William Antrobus. He said he
would like to meet their children. He came to their home with Herman and
Shirley Antrobus. He went on a family outing with them.

[19]        
Douglas Antrobus subsequently began taking Linda Antrobus for outings.
They usually went to his home.

[20]        
The plaintiff testified that the assaults began soon after he began
seeing her.

[21]        
She testified that a pattern developed.  Her brother Bruce would spend
one weekend day with Douglas Antrobus and she would go on the other day.  She
said that she and her grandfather would look at store windows on Robson
Street.  He then began rubbing her arms and telling her what a nice girl she
was. This behaviour escalated.  He began rubbing her leg and then licked her
private parts.  He took her pants off and put his penis inside her.

[22]        
The plaintiff testified that he put his penis in her mouth as well and
put his finger into her.

[23]        
She said she felt dirty, confused and guilty.  She did not tell him to
stop because she did not think she had the right.

[24]        
She said that he “licked” her almost every visit.  He frequently put his
penis in her mouth and even more frequently put his penis in her body.

[25]        
She also testified that when he and she walked to the bus stop, if the
weather was cool enough that he was wearing a coat, he would put her hand in
his pocket and have her masturbate him.

[26]        
She testified a man named Farrell Salt came around and was permitted to
rape her and put his penis in her mouth as well.  She says that this occurred three
or four times with Farrell Salt at a motel where Mr. Salt lived.

[27]        
She also watched Farrell Salt rape another girl.

[28]        
The plaintiff testified she was terrified and felt dirty.  She said her
grandfather told her that if she ever told anyone of these activities she would
get sent to a children’s prison.  She felt very stressed but did not want to go
to prison.

[29]        
She testified her grandfather also took her to Victory Square and other
places in the downtown eastside and would ask people if they wanted to “have”
the plaintiff.

[30]        
The plaintiff testified that on one occasion she stayed overnight at
Herman’s house.  Her cousin, Marie Antrobus, was in the upper bunk and she was
in the lower bunk.  She said that Shirley Antrobus had them do evening prayers
and then went out with her husband.  She said her grandfather came upstairs to
the bedroom and sexually assaulted her.

[31]        
The plaintiff testified that the grandfather gave her a piano.  She
played it for a while but she said she hated touching it.  It reminded her of
him.  She testified he also gave her a vanity table and chair, a blue bicycle
and a bible.

[32]        
Eventually, she testified, she told both her parents what had happened.  She
decided she would rather go to prison than continue being abused.  She said
that she received no sympathy.  Her father told her that “we will never speak
of this again”.  Her parents did not take her to the police; they did not
provide counselling.

[33]        
The plaintiff said that after this, she found that her father was “mean”
to her.  She was told never to speak of this again.

[34]        
Linda Antrobus said that she did not see her grandfather again.  She
said that he telephoned in late 1964 or early 1965 and she spoke to him
briefly.  He asked her how old she was.  She said that her mother grabbed the
phone out of her hand and she heard her say, “What do you want now?”

[35]        
Douglas Antrobus died in 1976.

THE ALLEGATIONS OF LINDA ANTROBUS CONCERNING HER FATHER

[36]        
Linda Antrobus testified that her father physically abused her.  From
the age of six or seven until she was 14, he disciplined her by striking her
with a belt.  There was no corroborating evidence of these assaults.  Her
mother denied it took place.

[37]        
Linda Antrobus testified that her father began to “bother” her in 1964. 
She said he would rub up against her with the front part of his body against
her back.  She said that this happened “quite frequently”.  As a result she
tried to spend time in her bedroom.  She also described her father trying to
position himself under her when she was sitting on a couch.  She alleges he
also made remarks such as “Linda, you’re really weird”; “something awful
happened to you when you were 10”; “you ruined my life, now I’m going to ruin
yours”.  She said she knew that he was referring to the sexual assaults.  The
plaintiff said that her father also demanded that she get into bed with him. 
This was in 1972, when she was 22.  She ignored him.  She went to her room and
shut the door.

BACKGROUND OF LINDA ANTROBUS

[38]        
Linda Antrobus’ brother Bruce died in 1967 when he was 20 and she was
17.  She testified that this was a terrible blow.  Bruce was her closest friend
and confidant.

[39]        
She attended high school and enjoyed it but had trouble focussing.  She
had a number of chores at home and was unable to participate in after school
activities.

[40]        
Linda Antrobus testified that she had one significant relationship.  She
met Michael Lutsenko in 1972 and moved in with him six months after meeting
him.  She said that she did not enjoy sex.  He was the one who instigated it
and it occurred approximately once a week.  She said that negative thoughts of
her grandfather resulted from intercourse.  She said that she has not had any
intimate relationships since then.  She testified that she is unable to attach
and has not had romantic relationships.

[41]        
The plaintiff testified that she wanted to be a teacher.  She likes
children and the fact that they appreciate learning.  She said, however, that
her parents were not supportive.

[42]        
She attended Vancouver Community College and did the equivalent of first
year university but found it difficult.  She testified she had a problem
focussing.

[43]        
Linda Antrobus worked in various places and then took a legal secretary
course at night and spent the next several years working for several Vancouver law
firms including McDonald Russell, Harper Grey, Macrae Montgomery and Bull
Housser.

[44]        
She then began working for the Legal Freelance Centre, a firm which provides
support staff to law firms on a freelance basis. She said she enjoys this
because she can avoid relationships.  She finds that she does not want to
become close with people, because it.  That makes her feel uncomfortable.

[45]        
Linda Antrobus has worked for Legal Freelance Centre from 1985 to the
present.  She also had some assignments from Kathy Jackson Associates in 1993
and 1994.

[46]        
Betty Garbutt is the owner and founder of the Legal Freelance Centre. 
The company supplies temporary employees to law firms and also places people in
permanent jobs.  The positions include paralegals, receptionists, accounting
staff and legal administrative assistants.

[47]        
Ms. Garbutt’s assessment of the plaintiff was that she had good
litigation skills but some personality issues.  She seemed, in the view of Ms. Garbutt,
“distant” for someone wanting to promote herself.  The evaluations that she
received from clients were consistent with this.  She did good work but was
found by staff to be abrupt and withdrawn.  Several firms’ reports referred to
her “glare” or “blank stare” when she was under stress.  In the view of Ms. Garbutt,
her personality kept her from the top range of positions.

[48]        
Ms. Garbutt outlined her strengths:  the plaintiff was reliable and
had good legal skills.  She had a good ability to understand and a good memory
and was very loyal.  She has adapted well to technology as it has evolved in
law firms over the years.

[49]        
Ms. Garbutt said her weakness was a “flight or fight” reaction when
stressed.  She gave the impression of glaring and was defensive if she felt she
was being judged.  She said that she does not naturally interact with people.

[50]        
Linda Antrobus was helpful to her parents and siblings over the years.

[51]        
She testified that in 1967 she had a conversation with her parents about
the amount of help she provided compared to her siblings.  She asserts that she
was told that in their wills her parents would leave $1.00 to each of her
siblings and the rest of the estate would go to her.

[52]        
In 1972 her parents bought a farm in the Chilliwack area.  She helped
them with the many tasks involved over the years.

[53]        
Linda Antrobus also helped her siblings with law-related tasks.

[54]        
In 1978 Linda Antrobus met Sheila Davis.  Ms. Davis was to become a
trusted friend.

[55]        
Ms. Davis testified in these proceedings.  She has lived in Nanaimo
for 32 years but has been friends with the plaintiff since they worked together
at the former law firm of Macrae Montgomery.  She testified that she and the
plaintiff developed a “cordial” relationship.  They had similar interests: 
gardening, cooking and flower arranging.

[56]        
Ms. Davis said she met Linda’s parents, grandmother and siblings
over the years.  She said Linda Antrobus helped out her parents on their farm
in Chilliwack.  Ms. Davis estimates she visited the parents’ Chilliwack
farm with Linda some 12 times.

[57]        
Although Ms. Davis and Linda Antrobus now live in different
cities, they keep in touch.

[58]        
Ms. Davis said that after many years Linda Antrobus told her about
the sexual abuse she had been subjected to.  Ms. Davis recommended that
she obtain professional help.  She also referred her to some literature on the
subject of coping with sexual abuse.

[59]        
In 1986 Linda Antrobus purchased property in Chilliwack as well.  According
to William Antrobus, the family helped her with it:

Q         When do you recall that you became estranged
from Linda? What happened that caused –

A          Estranged from her?

Q         Estranged, or that you and Linda stopped –

A          Being friends?

Q         Yeah, in more recent years.

A          I couldn’t really
tell you, but it started when we got her a farm with two run-down houses,
72,000, 5 acres, and she bought that and we helped with her paying it and all
her chores and everything, farm work, and then it just got she wanted too
much.  Everybody in the family would go out and help.  Herman, all our
grandkids, we’d all go out and help.  But she was sort of, I want this, I want
that, and then she sold it.  I don’t know what she got for it.  We had enough.

[60]        
Linda Antrobus testified that she was close to her grandmother Marie Ellis. 
Her evidence is that in 1982 her grandmother promised to leave her estate to
her.  After she died in 1984 the will that was probated did not provide that.

[61]        
On October 20, 2006 Linda Antrobus commenced an action against the four
defendants in this case and another person.  She alleged the real will made
provision for her to receive the house.  Such a will was not located.  Linda Antrobus
did not pursue the action.

DOUGLAS ANTROBUS

[62]        
It is common ground among all the parties to this litigation that Douglas
Antrobus, the father of William and Herman, was an unsavoury character.  The
defendants dispute that they knew this in 1959 – 1960.

[63]        
Douglas Antrobus had an extensive criminal record.  From March 1947 to
March 1954 he was an inmate at British Columbia Penitentiary.  He was serving a
ten year sentence for “attempting to procure” and “attempted carnal
knowledge”.  His penitentiary file includes the following:

It appears that this man has a
considerable record, at least three jail terms are known prior to the first
penitentiary sentence in 1928.  Two other penitentiary terms are known and he
has spent little time outside of institutions since 1941.  The general pattern
is that of moral offences involving children.  He is now completing a ten year
term for carnal knowledge and procuring.  He has not been a disciplinary
problem, but is poorly accepted by inmates and staff alike. ….

[64]        
The penitentiary records contain references to some of the defendants. 
A November 13, 1947, notation states:

Receives letters from son Billy
in Toronto.  Two sons visited him last summer.

[65]        
“Billy” is the nickname of William Antrobus.  As I stated above, William
Antrobus came to British Columbia in the summer of 1947 to visit his mother. 
Herman testified he was in Vancouver in 1947 as well, staying with Marie and
Bill Ellis.

[66]        
A Pre-Release Report was prepared by the penitentiary in early 1954.  It
includes these references:

Long separated from wife and
finally [divorced] in June 1953.  Two sons aged about 36 and 48.

Feb. 13/53.  Antrobus had a
visit from his wife last Saturday whom he has not seen for 21 years.  She, it
seems, has been living with a Mr. [Ellis] during that time, goes under her
own name, they have raised the Antrobus two sons who are now in their 30’s. 
For some 8 years they have been living in Vancouver … [Antrobus] receives the
odd letter from the following:

Mr. H. Antrobus, 28 Suffolk
St. Toronto, Ont. Son

Mrs. J. Anrobs [sic], 4357
– 10^th Ave. Van. B.C.          Daughter-in-law

It appears that his children do
not want ot [sic] bother with him as he doesn’t receive any mail from members
of his family, he has not heard from them since last May 1953.

[67]        
4357 – 10^th Avenue was the address of Varsity Grinders, a
business operated by Marie Ellis.  Herman Antrobus did at one time live at 28
Suffolk Street in Toronto.

[68]        
The report contains a section describing the plans of Douglas Antrobus
upon release from the penitentiary in 1954.  It includes the following:

Claims to have about $100 upon
[release]; institutional clothing only, does not anticipate family assistance
as relationship with sons has mysteriously deteriorated since wife’s divorce.

EVIDENCE OF JOAN ANTROBUS

[69]        
Joan Antrobus testified.  She adamantly denied ever hearing about
William’s father, Douglas Antrobus.  She asserts that her husband William never
spoke of his father.

[70]        
She denied the truth of the penitentiary records.  She asserted she
never wrote any letter.

[71]        
Joan Antrobus testified that one day Douglas Antrobus telephoned.  He
said that he was William’s father and that he would like to visit and meet the
children.

[72]        
She said she never invited Douglas for dinner.  He attended one family
outing to an abbey in the Fraser Valley.  Joan Antrobus testified on one
occasion she and Douglas Antrobus and Linda had an outing.

[73]        
Joan Antrobus testified Douglas took Linda out alone for perhaps a
three-month period.  She said it only occurred on Saturdays and was not for the
entire day:  perhaps three to four hours.  As far as she knew, they would go to
a movie and go shopping.  Linda was never away overnight.

[74]        
Joan said that Linda never complained about going and never asked to
stay home.

[75]        
Joan said she never heard the name Farrell Salt.  She said she did
Linda’s laundry but never came across anything suspicious in washing her
undergarments.

[76]        
According to Joan Antrobus, Linda disclosed to her father that Douglas
had “touched her private parts”.  She said there was no mention of other
children.  There was no mention of being taken to the Victory Square area.

[77]        
Joan Antrobus testified that her husband told her of this discussion. 
According to her, Douglas Antrobus denied the allegations, but her husband
believed her daughter. He told his father not to come around.

[78]        
Joan Antrobus denied that William Antrobus ever struck Linda.  She
specifically denied that William ever used a belt.  He never knocked her
against the back door.  She dismissed as well the suggestion that he ever
rubbed up against her or tried to get underneath her.  She dismissed as
“ridiculous” the suggestion that William asked Linda to get into bed with him.

[79]        
Counsel for Linda put to Joan the suggestion that Linda told her that
Douglas Antrobus had “put his stinky dink” in her.  Joan Antrobus dismissed
that as “a complete lie”.

[80]        
Joan Antrobus agreed that she and William had a conversation with Linda
which she subsequently learned was taped by Linda.  This conversation took
place on October 17, 2005.

[81]        
She said in the course of that conversation that Herman did say that
Douglas Antrobus had changed.  She said she knew at that point that he had been
in jail. She had been told he was in jail for beating up a prostitute.

[82]        
Joan Antrobus agreed that before Douglas Antrobus started taking Linda
on outings she had heard of Herman’s concern.  Herman had told her that he had
left his daughter Marie with Douglas Antrobus and went out with his wife. 
Herman came back because he forgot his wallet and found all the lights were
out.  He thought there was something “funny” going on.

THE FALLING OUT OF 1999

[83]        
The plaintiff and her parents had a falling out in 1999.  Joan Antrobus
described it this way.  She said that a confrontation occurred at their home on
Boeing Avenue.  Her son Mark and his wife and son were there as well.  Linda
Antrobus wanted her parents to remove some property they had stored at the
plaintiff’s farm in Chilliwack.

[84]        
Joan Antrobus testified that because of a doctor’s appointment, she and
her husband were not able to do that until the following Friday.

[85]        
Linda Antrobus angrily told her that she did not care if Joan Antrobus
“died”.  According to Joan Antrobus, Linda Antrobus told them that from then
on, she would not consider them her parents, but simply “Joan and Bill”.

[86]        
Mark Antrobus testified about this confrontation as well.  He said that
he was out of the room clearing dishes.  He said he heard Linda shouting across
the table.  The argument concerned her farm in Chilliwack.  He heard his father
telling Linda Antrobus to leave and he heard her say that she did not care if
her mother died.

[87]        
Linda Antrobus denied “renouncing” her parents during this conversation
in 1999.  However, in cross-examination she conceded that she may have said “You’re
not my parents.  You’re just Joan and William”.

EVENTS SINCE 1999

[88]        
Mark Antrobus testified that Linda Antrobus continued to call him after
1999.  She would tell him that she was treated like Cinderella as a child.  (I
take that to mean that she felt she did menial tasks while her siblings did
not).  The theme, he said, was that she had been denied a childhood.

[89]        
Mark Antrobus testified that in 2003 Linda Antrobus told him that she
had been sexually abused.  She did not provide any details.

[90]        
In 2005, Linda Antrobus stopped speaking to her brother Mark.

[91]        
Maureen Campbell, Linda’s youngest sibling, testified that she and Linda
had a disagreement in 2002.  Linda came to Ms. Campbell’s home and told
her that her parents had given her the house they owned on Sterling Street in
Richmond, as well as property they owned on Berkeley Street in Vancouver.  She
told Ms. Campbell that they had then taken the property away from her.

[92]        
Ms. Campbell’s response was to tell her to “listen to herself”;
that she sounded “crazy”.  Linda said to Ms. Campbell that she had done so
much that friends of her brother Bruce used to call her Cinderella.

[93]        
Ms. Campbell told Linda Antrobus that she was “not much of a
babysitter” when they were children.  She told her she had been abused by a
friend of her brother Bruce while she was in Linda’s care.

[94]        
Linda Antrobus told her that Ms. Campbell had not been abused.  Ms. Campbell
told her to leave the home and they have not spoken since.

[95]        
The plaintiff testified about a conversation she had with her uncle, the
defendant Herman Antrobus, in September 2005.  She said that the conversation
took place in his home on Upland Drive in Vancouver.  Her evidence is that Mr. Antrobus
told her that he and her parents knew her grandfather was a pedophile and had
been in and out of prison.  She said that Herman Antrobus told her “We really
shouldn’t have let him have you.”

[96]        
According to Linda Antrobus, Herman Antrobus also told her that abuse
had happened to his daughter and that he had spoken to her parents about it.

[97]        
It is relatively unusual to sue one’s parents.  This, however, is the
second such action.  In 2005 Linda Antrobus brought action against her parents
and three siblings.  The matter was heard in an eight day trial.

[98]        
The trial judge, Madam Justice Lynn Smith, described the action at para. 2
of her Reasons (Antrobus v. Antrobus, 2009 BCSC 1341):

2.         The plaintiff’s
central claim is that, between 1964 and 1999, she contributed a considerable
amount of labour and, to a lessor extent money, to her parents and to her
family as a whole.  She says that her contributions were significantly above
what would ordinarily have been expected and that they greatly exceeded any
contributions made by her siblings.  She argues that her parents have been
unjustly enriched by her contributions.  She alleges that her parents, in 1967
and on a number of occasions thereafter, promised that she would receive their
entire estate in return for work she did for them.

[99]        
Smith J. found as fact that Linda Antrobus did in fact perform an
inordinate amount of work in the home:

179.     I find that Linda, as a teenager, was assigned and
performed the tasks she described in her evidence. She did the bulk of the
daily housecleaning, after-school childcare, and cooking in the family, as well
as a good deal of the laundry and ironing, and assisted with the household
shopping, to the detriment of her ability to enjoy life in the same way as other
teenagers who did not have such responsibilities. Counsel for the plaintiff
used in her submissions the term “child homemaker” and I find that term is
appropriate for the role that Linda was assigned.

180.     I find as well that,
for a few years, Linda worked somewhere between every Saturday (her evidence)
or every second Saturday (Joan’s evidence) at her parents’ business, without
any payment.

183.     I am satisfied that the
plaintiff has established on a balance of probabilities that her parents did
promise her that they would leave her essentially the whole of their estate, in
compensation for the work she had done as a teenager and for the work she would
continue to do in the future.

[100]     The court
in that case found an unjust enrichment.  Her Ladyship found the appropriate
remedy was to order damages equivalent to one-quarter of the net assets of
William and Joan Antrobus, $190,000.  In that case, the family home had been
conveyed by William and Joan Antrobus to the three other children and
themselves as joint tenants.  This transfer was declared void and of no effect
as against the plaintiff because it was in breach of the Fraudulent Conveyance
Act, R.S.B.C. 1996 c. 163.

[101]     The Court
of Appeal upheld the finding of liability but reduced the damages to $100,000.

AMENDED PLEADINGS AND NEW ALLEGATIONS IN 2009

[102]    
In the original statement of claim the plaintiff alleged that William
Antrobus engaged in verbal, psychological and physical abuse of the plaintiff. 
Paragraphs 22-24 provide:

22.       For many years the Defendant William Antrobus,
supported by Joan Antrobus verbally, psychologically and physically abused the
Plaintiff making references to her character and the sexual abuse which had
occurred.  The verbal, psychological and physical abuse of the Plaintiff by William
Antrobus, and supported by Joan Antrobus commenced in 1959 and continued
thereafter.

23.       William Antrobus and Joan Antrobus intentionally
inflicted mental suffering upon the Plaintiff by various means, including inter
alia inappropriate and cruel forms of discipline, verbal abuse, threatening,
berating and belittling (“verbal/emotional and physical abuse”).

24.       The beatings and
verbal/emotional abuse were committed by William Antrobus with the support of
Joan Antrobus on various occasions in the family residence.  The family
residence in which the Plaintiff lived in [sic] with her parents and siblings
was located at 1728 East 62^nd Avenue, Vancouver, BC.  The beating
and/or physical abuse ended when the Plaintiff was an adult in 1971 except for
an incident in March of 1999 when William Antrobus threatened to hit the
Plaintiff and she said she could call the police.  The verbal/emotional abuse
did not cease.

[103]    
On June 30, 2009, then-counsel for the defendants William and Joan
Antrobus prepared an application to amend the statement of defence of William
and Joan Antrobus by pleading that the claims were statute-barred as a result
of the Limitation Act, R.S.B.C. 1996, c. 265.  These defendants
argued that the limitation date for the claims in tort is two years and six
years for the other claims (apart from sexual assault).  In the Outline the
defendant said:

6.         Pursuant to s. 3(2)(c) of the Limitation Act,
the limitation period for claims for tort in personal injury is two years.

7.         Pursuant to s. 3(5)
of the Limitation Act, the limitation period for “breach of fiduciary duty,
verbal/emotional abuse, physical abuse, physical abuse, intentional infliction
of mental suffering, negligence, and standing by while the plaintiff was
abused” is six years.

[104]    
Counsel for the plaintiff then applied (successfully) to amend the
statement of claim.  The new allegations in this regard are at paragraphs 25 and
26 of the amended statement of claim:

25.       The Defendant, William
Antrobus, committed sexual assaults against the plaintiff when he rubbed parts
of his body against her body and would laugh when she moved away.  This
occurred for many years after she had been sexually assaulted by Douglas
Antrobus and when her body began developing in puberty.  This usually occurred
in the living room after dinner and the plaintiff would retreat to her room to
avoid further unwelcome contact.

26.       The Defendant, William
Antrobus, also committed sexual assaults and/or sexual abuse, when he made
unwelcome advances toward the plaintiff which included rubbing other parts of
her body including her arms in 1972 and demanding that she get into bed with
him, also in 1972.  She rebuffed these advances, which were heard by others in
the house, but she was afraid of him as she was living in his house.

[105]    
On July 10, 2009 the plaintiff saw her counsellor, Lynn Jones.  Ms. Jones’
notes of that session includes this:

More memories resurfacing – one
in particular where her father demanded that she get into bed with him – mother
was there and did nothing.

[106]     Ms. Jones
testified that words to that effect were stated by Linda Antrobus.  Ms. Jones
was asked about this sudden memory.  Ms. Jones testified that Linda Antrobus
felt safer and safer with her and became more “open to finding memories”.

[107]     These are
allegations of serious misconduct.  The court must be especially vigilant when
the allegations are made two years after the lawsuit commenced and after an
eight day trial against her parents in the other matter.  (That trial was
conducted between March 30 and May 27, 2009).  In addition, it is very
significant that the allegations were first made after an application was made
to dismiss other non-sexual allegations.

CREDIBILITY OF THE PARTIES

[108]     There is a
great deal of anger in the Antrobus family.  Linda Antrobus has felt so
strongly about her treatment by her parents and siblings that she has brought
action not once, but twice.  The legal expenses have devastated all members of
the family including, I am sure, the plaintiff.

[109]     I have
concluded that the anger has led members of this family to place truth in
testifying somewhat below where it should be.

[110]     For
example, Joan Antrobus maintained in her evidence that she was ignorant of
Douglas Antrobus’ convictions.  She claimed that she did not correspond with
him while he was in prison.

[111]     I do not
believe her.  It is inherently unlikely that she would hear nothing from
William of his father.  Her claim that she did not correspond with him is
inconsistent with the prison records.

[112]     William
Antrobus denied that he visited his father in prison. That is clearly untrue.
The prison records make it clear that he visited his father in 1947.

[113]     The
plaintiff’s credibility is severely compromised by her testimony on June 9,
2014.  She was asked in cross-examination whether her brother, Bruce, had been
abused by her grandfather.  She said that Bruce did not tell her this.

[114]    
Counsel then put to her the report dated March 11, 2004, of her
psycho-therapist, Lynne Jones.  The report includes this:

…[Linda Antrobus] said that her
deceased brother was also sexually abused by the grandfather and other children
were involved.

[115]     Linda
Antrobus then changed her evidence.  She said her brother did tell her that he
was sexually abused by Douglas Antrobus.

[116]     Linda
Antrobus has lied to this court under oath.  I do not know whether her brother
Bruce told her that he had been sexually abused by Douglas Antrobus.  Linda Antrobus
has stated under oath both that he was sexually abused and that he was not.

[117]     A lie
under oath is a serious matter.  There was no apology from the plaintiff.  In
fact, she seemed to me to readily agree that she had been untruthful when
confronted with what she had told Ms. Jones.

[118]     Counsel
for the plaintiff argued that Linda Antrobus was “less than frank” about
this issue to protect the memory of her brother Bruce and that she has nothing
to gain by incorrectly reporting this information.

[119]     A witness
testifying under oath is not entitled to decide to perjure herself to protect
someone’s memory.  There is nothing honourable about perjury.

[120]     Linda
Antrobus misled the court about another matter.  In examination-in-chief she
testified that the sexual abuse she had suffered affected her later ability to
enjoy consensual sex.  She said she had such sex when she was 23 or 24.  She
testified it was quite disturbing.  It gave her flashbacks and was not
enjoyable.

[121]     The
plaintiff testified she had a relationship with a Michael Lutsenko.  They lived
together but she did not enjoy sex.  It occurred approximately once a week, at
the instigation of her boyfriend.  It resulted in memories of her grandfather’s
abuse.

[122]     Linda Antrobus
testified she has not lived with anyone else since then.  She has had no romantic
relationships since then.

[123]     In
cross-examination she was asked about her relationship with Reginald Patton. 
She said that she saw him a few times.  They never had sex; they never lived
together.  She also said she lent money to him and had to sue him to recover
it.

[124]     Reginald
Patton testified.  Quite a different picture emerged.  He testified he met
Linda Antrobus in 1971 or 1972.  He moved into her apartment in Burnaby and
shared it for between six months and one year.

[125]     He
testified the relationship became intimate after approximately three months. 
He said that intercourse was “pretty frequent” and that she was never reluctant
to have sex.

[126]     Mr. Patton
agreed he owed Linda Antrobus a sum of money.  She obtained repayment through
garnishing his wages.

[127]     Mr. Patton’s
evidence of intimacy was not challenged in cross-examination.  His evidence
that he lived with the plaintiff was challenged.

[128]     I prefer Mr. Patton’s
account to that of the plaintiff.  It is more likely, having regard to all the
circumstances.  In particular, I am influenced by the fact that she denied
having sex with him in her evidence but his allegation to the contrary was not challenged
in cross-examination.

THE EVIDENCE OF WILLIAM ANTROBUS

[129]     William
Antrobus is elderly.  He has been found to be incapable of managing his
affairs.  An application was made on his behalf to put into evidence the
examination for discovery conducted in 2008 by then counsel for the plaintiff. 
The plaintiff opposed this on the basis that the evidence did not establish
that Mr. Antrobus lacked capacity to testify.

[130]     I agreed
with that submission.  I conducted a voir dire.  After asking him a
series of questions, I reached the conclusion that he lacked testimonial
capacity.  Although he was able to answer some questions about himself and his
family, he was not aware of what was taking place in the courtroom and did not
understand that he was being sued.

[131]     In light
of that ruling, counsel agreed to place in evidence the transcript of his
discovery that was conducted on November 13, 2008.

[132]     In his
discovery evidence, William Antrobus denied knowing of his father’s criminal
history.  He denied knowing his father had a propensity for molesting
children.  He denied trying to contact him in prison.

[133]     William
Antrobus testified that Linda Antrobus told him that he had been touched by
Douglas Antrobus.  He took what she told him to mean that she was saying he
touched her “private parts”.  He testified that he asked if there was
penetration and “she said no”.

[134]     William
Antrobus testified that he confronted his father the next time Douglas Antrobus
came to the house.  He said it was a verbal exchange and Douglas Antrobus
denied touching Linda.  William Antrobus said he did not accept the denial and
that he believed Linda Antrobus.

[135]    
William Antrobus admitted that he did not go to the police about his
father’s molesting his daughter.  He was asked why.  He replied:

Because it didn’t look as serious
at the time when she said “he touched”.  And he is, or was, my father then, and
I don’t intend on putting him in jail.  Just get him out of our life, and
that’s what I did.

[136]     He also
said that he did not arrange counselling for Linda because “she was fine”.

HERMAN ANTROBUS

[137]     Herman
Antrobus said he did learn his father was in prison but denied ever seeing
him.  He denied writing a letter to him but agrees that he lived at 28 Suffolk
Street, in Toronto.  He was shown the prison records, but insisted they were
wrong.

[138]     Herman
Antrobus testified that his father came to his door one day in 1954.  He said that
he and his wife Shirley spoke to him for half an hour.  They then left the two
children, Marie and Doug with Douglas Antrobus.

[139]     Herman
testified that he realized he had left his keys and returned to the house. 
When he got back to the house, the lights were all extinguished.  This made him
suspicious.  He told his father to leave.

THE OCTOBER 17, 2005 MEETING

[140]     On October
17, 2005, the plaintiff met with her parents.  She surreptitiously recorded the
conversation and later arranged a court reporter to transcribe it.

[141]     The
background to the conversation is this:  In 1967 the plaintiff alleges she had
a conversation with her parents to complain about how much work she performed
around the house.  She alleges that her parents told her she would be receiving
their entire estate, except for $1 for each of her three siblings.  She alleges
she was encouraged by her parents to therefore continue working for the family.

[142]     In 2005
she conducted a search at the land registry.  She discovered to her horror that
her parents had transferred title to their home to her three siblings and
themselves as five joint tenants.

[143]     This
discovery led to a declaration of war.  Part of Linda Antrobus’ strategy was to
confront her parents and record their answers.  She also spoke to them about
her understanding that her grandmother Marie Ellis had promised to leave
everything to her.  There are also references in the transcript to the sexual
abuse.

[144]    
The transcript is extensive.  The following brief excerpts are relevant
to the background to this case and to the issues before me:

LINDA:            How
often did I hear this?  “It might look really awful right now, Linda, but don’t
worry.  It’s a dollar for Craig, a dollar for Mark, a dollar for Maureen,
because you’re the only one we could depend on.  You’re the only one who did
anything.”

LINDA:            For
two years I’ve been writing you a letter in my brain to send to you guys.  The
last two weeks I have been composing it because it is a painful letter.  And we
all know what happened to me when I was 10 and I’ll — never did anything about
it, but you took me into the bedroom and ripped up one side of me and down the
other.

Oh, you don’t
know what happened.  Well, just spell it out:  my grandfather molested me.  And
you think you would have clued into the fact that I said, “I don’t want to go
with him.  I don’t want to go with him, mom.  I don’t want to go with him.”

“Linda, go with your granddad.”

“I don’t want to go with him.”

And then he threatened me with
—

WILLIAM:        Oh, boy, is your mind gone.

LINDA:            What
are you talking about? That never happened?  Is that what you’re saying?

WILLIAM:        Yes. 
No, it did happen, but it wasn’t us leading you into that.  We didn’t even know
about it until you told us.

LINDA:            You
knew about it.  Uncle Herman told me.  You knew what was – knew about it.  He
was doing it – he was trying it on Uncle Herman’s kids and you knew.  You knew.

And
apparently, I find out recently, he has been in and out of jail for that.  You
knew before he even showed up at our house what he was.  He was in and out of
jail for that.

How dare you
destroy my childhood and take it away from me like that.  That was cruel.  That
was really cruel.

WILLIAM:        Yeah.

LINDA:            No, you don’t even know what it’s
like.

WILLIAM:        I know you got a problem all right.

LINDA:            Oh,
what do you think? I got molested by my grandfather with my father bringing him
home.

WILLIAM:        What can I do about that?

WILLIAM:        What is the purpose of this visit?

LINDA:            To
clear the air about what has gone on.  Everybody tells me I have to come here
and clear the air.  I was writing a letter and –

WILLIAM:        Who’s
cleared – what air?  What have you got to clear?  I don’t know what you’ve got
to clear.

LINDA:            Well,
I guess it didn’t bother you what happened to me, but it really bothered me.

WILLIAM:        No. 
It bothered me at the time, yes.  It sure did.  The fact that I –

LINDA:            If
it bothered you at the time, why did you sit me on the bed and say, “Do you
know what you’ve done, Linda?” Have you ever heard of a father saying that to
her [sic] child?

WILLIAM:        Do you know –

LINDA:             what you’ve done, Linda.  Yeah.

WILLIAM:        Yeah. 
Do you know that your brain is not working properly?  I never ever said
anything like that.  I tried to find out what the old man did to you –

LINDA:            No, you didn’t.

WILLIAM:        – and you’ve got it twisted somehow.

LINDA:            No. 
We sat for a music lesson.  The bed faced this way on 62^nd.  I’ve
got an excellent memory.  Talk to any doctor about a child who has been
abused.  When they have got an excellent memory about something, it’s because
it really did happen.

WILLIAM:        Well –

LINDA:            I
sat on the bed, the dresser this way, music up there, you’re teaching me a lesson,
a music lesson.  You belted into me with “Do you know what you’ve done, Linda?”

LINDA:            I
thought after my letter maybe I shouldn’t write a letter.  I’ll go to the land
title office and see – maybe you’ve done the honourable thing in putting me on title. 
Oh, guess what?  You haven’t.  You’ve put every one of my siblings on title but
me.  What is that about, mom?

LINDA:            In
1982 grandma [Marie Ellis] and Mrs. Leatherdale sat down with me at her
house and grandma said, “You’re the only one I can depend on.”  Grandma and Mrs. Leatherdale
told me I was getting her house up there on 14^th Avenue.  What
happened to that?

JOAN:             I
don’t know nothing about what grandma wrote because grandma wrote her own
will.  Okay.  We have done our will.  We’ve been to a lawyer.  It’s cost us
over a thousand dollars to have a will made because of you.  You.  “I’ll break
that goddamn will.  They’ll go – those kids will get nothing.  I’ll get
everything.  They won’t get a single thing.”

LINDA:            And I said that to you, did I?

JOAN:             Yes, you – no.

LINDA:            Oh, oh.

JOAN:             But you said it to everybody else.

LINDA:            Oh, so hearsay.

JOAN:             Yes.

LINDA:            Yeah. 
Some good hearsay.  So you got a will to make sure I didn’t get a penny, didn’t
you?

WILLIAM:        No.

JOAN:             No, we didn’t.

LINDA:            Of course you did.

WILLIAM:        You haven’t heard – read it.

LINDA:            Just like Maureen said, “You’ll get
nothing, Linda.”

WILLIAM:        You’re so wrong.

LINDA:            Then why isn’t my name on this?

WILLIAM:        It’s
not on that because that is – is the way it’s worked out so that you can’t come
back –

JOAN:            – and break a will.

WILLIAM:        – and try to take everything.  That’s
why you’re not on there.

LINDA:            And it’s just the opposite.

WILLIAM:        But in the will, in the will –

LINDA:            It’s just the opposite.

WILLIAM:        – YOU GET EQUAL SHARES WITH EVERYBODY.

JOAN:             Oh, Jesus Christ.

LINDA:            By
law.  No, no.  This is the work I just finished doing.  By law they get
everything and they don’t have to give me a penny.  Just like Len did.

LINDA:            –
because you – it doesn’t matter.  When it’s joint tenants, it doesn’t matter. 
It’s only when it’s tenants in common.  And you didn’t put tenants in common,
you put joint tenants.

So if you
should be riding in a car with Mark and Maureen and you all get killed, Craig
gets everything, and I get nothing.

WILLIAM:        We
got one of the best lawyers in the city.  It cost us $1,200 and he worked it
out so that you get the same as everybody else, but they get the –

LINDA:            Were
you lying to me?  Okay.  Let me tell you what Maureen let me know just a while
ago.  Although this is supposed to have been very quiet about what my granddad
did to me, you apparently discussed it with Maureen openly.

JOAN:             What?

LINDA:            The
sexual abuse.  You thought, cleanse your soul.  But this is my private part of
my life.  Why did you have to be so nasty to go over there and tell that
big-mouthed bitch who’s told me everything everybody –

JOAN:             Who
did she tell?  I told her because you – you when she kicked you out, and I
said, “Do you know what?”

LINDA:            Before.

JOAN:             I said, “Linda has problems – has a
problem -“

LINDA:            Before. 
You told her before, mom, because I have never seen her since.  So how could I
know about it? You told her before.

LINDA:            No.  You know what my problem is?

WILLIAM:        Because we had nothing to do with it.

LINDA:            I
was nothing.  I wanted to please you people so badly.  So I was the bad little
girl that lured some old man in, not knowing that that man – and I was 10 years
old remember, 10 years old.  And if you think you didn’t say those words to me,
I swear to god I’ll have somebody hypnotize me,  [indiscernible] let you know
you said those words to me.  How cruel that was.  You didn’t even care that a
husband shall not use –

WILLIAM:        I think this is all in your imagination.

LINDA:            It’s not in my imagination.

WILLIAM:        Because I remember trying to find out –

LINDA:            Dad,
that was upstairs in the bedroom.  That was afterwards.  You and mom sitting
there talking about was it the joke, the mouse joke.

Dad, I have an incredible
memory.

WILLIAM:        But it’s awful twisted.

LINDA:            It’s
not twisted.  What’s twisted was is what you guys did to me.  You said, “Don’t
you know what fuck is, Linda?  It’s f-u-c-k.  It’s what’s written on the
streets.  That’s what you did, Linda.”  That’s the words you said to me.

WILLIAM:        Oh –

JOAN:             What?

WILLIAM:        Never in god’s world.  You’re a sick
woman.

LINDA:            You
were mad.  You’ve never used that word before.  You were mad.  I never heard
you use that since.  Yes.

WILLIAM:        Why don’t you get checked out?

LINDA:            Why
don’t you get checked out if you think that was the right way to talk to a
child.  How did you talk to me then?  Did you take me to the doctor?  Did you
charge this man?  Did you put him in jail?

WILLIAM:        No. 
I kicked him out of the house and away from the family and –

LINDA:            But
what good – what?  So he could do it to other children?  Why didn’t you put him
in jail?  Why didn’t you put him in jail?

WILLIAM:        I don’t know why.  I go through these
things now –

LINDA:            You
told me once.  You just finished being embarrassed by Uncle Herman having his
name in the paper and you didn’t want to be embarrassed again.  That’s exactly
what you told me.  So it must have been right after Uncle Herman had gone to
jail.

WILLIAM:        I think you’ve made a lot of things up
in your mind, Linda.

LINDA:            You know what?  I wish I didn’t have a
memory.  I really do.

You always
knew about this guy and you let him come here.  Why?  Why when you knew he was
like that would you let him in the door to take your children.  God.

JOAN: Because –

WILLIAM:        We didn’t know.

JOAN:             –
he had been to Uncle Herman’s house and Uncle Herman said he’d changed.

LINDA:            Uncle
Herman told me he warned you to get him away from me.  That’s what he just
finished telling me a month ago.  He said, “I warned them.  He was after my
kids.  I warned them and they wouldn’t listen.”

So you tell me
now how I feel.  My parents were warned, he had been in and out of jail.  And
yet I was just a little girl.  Some old man had his tongue up and down my
private parts, had his friends go at me and told – “you know what’s going to
happen to you if you tell anybody?”

And I’m trying to tell you, I
don’t want to be with him –

JOAN:             You didn’t tell me nothing.

LINDA:            He
threatened they will take me away and put away [sic] if I ever said anything. 
What do you think?  Children go tell their parents?  No.  Not when they
figure they’re going to get taken away from what little family they have.

WILLIAM:        Well,

LINDA:            You knew he was a mind manipulator.

WILLIAM:        They all are.

LINDA:            Why didn’t you listen to me, for god’s
sake?

WILLIAM:        They are the sweetest guys in the world.

LINDA: Why
did you leave me alone with him?  Why didn’t you warn me? Just say look out for
this.

WILLIAM: I
can’t go back 50 years or 40 years and say why I didn’t do this or why I didn’t
do that.  Why did I have to go to war?  I just went in and signed.  I don’t
know.

WILLIAM:        There
isn’t any of these kids getting one cent more than you.  Whatever we’ve got,
whatever we have –

JOAN:             It is to be dived equally.

WILLIAM:        It’s all the same.  Equal.

LINDA:            You can’t divide that which you don’t
own.

JOAN:             They don’t own anything.

LINDA:            They’re
joint tenants.  They own everything.  Hello.  This is the one thing lawyers
advise parents never to do.  You can’t even put yourself in an old folks home
if you need to or an apartment without their permission because they own this
house now.

LINDA:            It’s
called joint tenants.  That’s not tenants in common.  That’s joint tenants. 
That’s every single person has an equal share.  Nobody can do anything without
the permission of the other person.

So did Maureen pick out the
lawyer for you by any chance?

WILLIAM:        No.  It wasn’t –

LINDA:            Because
that’s exactly what I finished doing.  This is exactly what I finished doing
for four solid months.  You have now given title away to everything.  Even if I
wanted a share of this, I wouldn’t be allowed to have a share of it.  It would
be at their discretion in there.  Even if you wanted to sell this, you couldn’t
sell this because it’s in their names.

WILLIAM:        That is not true.

LINDA:            That is true.

JOAN:             Billy, don’t –

WILLIAM:        Have you got the –

JOAN:             Yes.  I have the will in the room.

LINDA:            But
the will doesn’t matter when you change the will.  It only means –

WILLIAM:        We didn’t change nothing.

LINDA:            The
will doesn’t mean anything when you have already changed the title.  You
changed your title.  It isn’t yours anymore.

[Emphasis Added]

[145]     It is
possible that Linda Antrobus and her parents were at cross-purposes about the
will.  Counsel for William and Joan Antrobus pointed to a trust document which,
he says, would have resulted in Linda Antrobus being treated equally with the
other children upon the death of their parents.

[146]     Linda
Antrobus knew only of the joint tenancy.  She was trying in this conversation
to show her parents that the effect of the joint tenancy means that
notwithstanding what the will says, the property never becomes part of the
estate and goes by right of survivorship to the other joint tenants.

[147]     William
and Joan Antrobus made no reference to a trust document and Linda Antrobus was
unaware of it.

[148]     It is
unnecessary to reach any conclusion about this matter because it has all been
litigated in the previous proceedings before Madam Justice Smith.  It is
noteworthy, however, that it appears that the details of the trust, the
revocability of the transfer, and the provision for Linda Antrobus to share in all
the assets were not put before the trial judge.

MEDICAL EVIDENCE

[149]     Between
1960 and 2007, Linda Antrobus did not see a psychiatrist, therapist or
counsellor.  In 2007, her physician referred her to a psychiatrist, Dr. Babra
Rana.

Dr. Babra Rana

[150]     Dr. Rana
performed a psychiatric assessment of the plaintiff on September 10,
2007.  She has since seen her on a monthly basis.  Dr. Rana’s report
states that the plaintiff has been diagnosed with post-traumatic stress
disorder, dysthymia and major depressive disorder recurrent.  In her initial
meetings with the plaintiff, the plaintiff did not disclose sexual abuse by her
father.

[151]    
Dr. Rana’s conclusion is stated in her report of November 10,
2009.  It is based of course on what Linda Antrobus told her as well as other
documentation.  She concluded that as a result of the emotional, physical and
sexual abuse she has suffered and the loss of her brother, as well as the
emotional detachment of her mother, Linda Antrobus has developed a number
of significant psychiatric difficulties:

She has developed post-traumatic
stress disorder and continued to have PTSD which are moderate to severe in
intensity.  She has also developed a major depressive disorder, moderate in
severity.  Since 1999 she has also suffered from panic disorder without
agoraphobia.  In my opinion it is likely that her current psychiatric
difficulties are due to the negative events in her life.

[152]    
Dr. Rana prepared an updated report in March of 2014.  Dr. Rana
expressed the prognosis as follows:

Her prognosis for a complete
recovery is guarded as she has multiple diagnoses and each of them cause
significant functional impairment.  In spite of adequate treatment she
continues to have symptoms of post-traumatic stress disorder and depression
when under stressed [sic].  She has had these psychiatric illnesses since age
10 and when a psychiatric disorder lasts for more than two years in duration
the prognosis for a complete remission becomes poor despite adequate treatment.

Lynn Jones

[153]     Lynn Jones
is a mental health professional who assessed and treated Linda Antrobus. 
Treatment began March 5, 2008.

[154]     Ms. Jones
reached conclusions based on what Linda Antrobus reported to her as well
as on Dr. Rana’s assessment.

[155]     Ms. Jones’
conclusions are essentially the same as those of Dr. Rana.  She points out
that when Linda Antrobus finally learned that her parents had known her
grandfather was a convicted pedophile and they refused to take responsibility Linda Antrobus
was “re-traumatized”.

[156]     In her initial
dealings with Mr. Jones in 2008, Linda Antrobus made no mention of sexual
abuse on the part of her father.  By 2010, memories of her father sexually
abusing her “returned”.  Ms. Jones opined that the plaintiff had until
then “put those memories on the shelf” and as she felt “safer and safer” with Ms. Jones,
she became more open to finding memories.

James Schmidt

[157]     James
Schmidt is a clinical neuropsychologist.  In August 2009 he performed a
psychological evaluation of the plaintiff at the request of her counsel.  He
noted that Dr. Rana diagnosed dysthymia, a mild but chronic long term
depression which appears to have arisen from significant stressors in her
life.

[158]    
Testing revealed Linda Antrobus to be of average intelligence.  Dr. Schmidt
administered a number of personality tests.  Unfortunately, the results were
invalidated.  This arose from Linda Antrobus’ tendency to describe herself
in very negative ways.  Dr. Schmidt said this about that:

Such tendencies can arise from a
systematic attempt by an individual to have an emotional disorder [I take that
to mean “present as having an emotional disorder”].  It can also occur in
individuals who are under a great deal of acute stress and/or are indeed
experiencing a variety of emotional difficulties.  Based on my behavioural
observation and interview findings it is my view that this pattern most likely
reflected two processes.  First, she is experiencing a great deal of emotional
distress at this point.  Second, she has a degree of suspiciousness or distrust
in others which is intensified by the examination situation.  In other words,
in my opinion she tends to perceive herself as being very disrupted and is also
distrustful that others will accept and recognize her problems, which in turn
leads to a response style that invalidated the obtained results.  This tendency
was of sufficient magnitude to invalidate the result of [several tests].

[159]    
Based on all of his testing, his interviews of her and of Linda
Antrobus’ friend, Ms. Davis, and the psychiatric records, he reached these
conclusions:

1.              
Ms. Antrobus has longstanding emotional difficulties which she
consistently attributed “at least in the last few years” to her childhood
history of sexual abuse as well as her dealings with her family.

2.              
Ms. Antrobus shows significant levels of depression and anxiety and
what he referred to as “interpersonal disruption” which takes the form of
distrust and cynicism toward others.

3.              
Her emotional state had deteriorated; part of this may have been
attributable to her dealing with these issues more directly.

4.              
Ms. Antrobus is somewhat fragile emotionally.  She reported
suicidal preoccupations but has not demonstrated any suicidal behaviour.

5.              
Ms. Antrobus should continue to receive psychiatric and counselling
intervention and support.

6.              
The etiology of Ms. Antrobus’ difficulties cannot be determined
based solely on test results, however Dr. Schmidt reasoned the pattern of
disruption is highly consistent with the record of abuse and lack of support
that she reported.  He said:

If the history she supplied is accurate, then it is in my
opinion very likely that her current emotional and behavioural difficulties are
due to those events in her early life.

Dr. Breay Paty

[160]     Dr. Paty
is an endocrinologist who has written about and treated patients with Type 2
diabetes.  The plaintiff was diagnosed with Type 2 diabetes in 2003.

[161]    
Dr. Paty’s opinion is that hyperglycemia includes three
contributing factors:  diet, exercise and stress.  His report dated March 10,
2014 states:

Linda tells me she is under
considerable stress relating to ongoing litigation involving her family.  I
consider this to be a major stressor and is likely contributing to her
persistently elevated glucose and inability to control her blood sugars
adequately.

[162]     Dr. Paty
does not assert that stress caused her diabetes.  There is a significant
genetic component to Type 2 diabetes.  Linda Antrobus’ father, brother and
sister all have diabetes.  That in itself suggests a high risk factor for the
disease.

[163]     Diabetes
is increasingly common in Canada and indeed around the world.  Dr. Paty
said that it is estimated that by 2020 three million Canadians will have diabetes.

[164]     On
cross-examination, Dr. Paty explained that stress does not cause
diabetes.  Rather, it makes it more difficult to stay on a diet or exercise
regimen.

OTHER MEDICAL EVIDENCE

[165]     Dr. Gordon
Cochrane was retained by the defendants to provide critique of the assessment
tools used by Dr. Schmidt.  He questioned Dr. Schmidt’s decision to ask Sheila
Davis certain questions.  He disagreed with Dr. Schmidt about the construct
validity of certain tests administered by Dr. Schmidt.

[166]     Counsel
for the defendants William and Joan Antrobus retained a psychiatrist, Dr.
Kulwant Riar.  Dr. Riar provided a report dated March 6, 2014, in which he
opines that, historically, disclosure of sexual abuse was discouraged and
victims bore a share of the blame.

[167]     Curiously,
despite assessing the plaintiff over a 2-day period, Dr. Riar was not asked to
provide a medical legal report concerning the plaintiff’s condition.

FINDINGS OF FACT

[168]     The
allegations of Linda Antrobus must be considered with particular caution. 
First, her accusations against her parents have been made since 1999.  Dating
from then, Linda Antrobus has borne a great deal of anger toward her parents
and uncle.  The resentment arose, at least in large measure, from her feeling
she did more than her share for her family and her parents, instead of
providing generously for her in their wills as she said they promised,
transferred the home to her siblings and themselves as joint tenants.

[169]     Second,
Linda Antrobus lied under oath.

[170]     The task
of fact finding is further complicated by my conclusion that William and Joan
Antrobus have not been truthful.

[171]     I reach
these conclusions.  First, Linda Antrobus was sexually abused by her
grandfather in the manner she alleges.  Her evidence in this regard was
unshaken.  The abuse was far more serious than what her parents testified she
described to them.

[172]     Second, I
do not believe the allegations of Linda Antrobus of sexual abuse on the part of
her father.  These allegations were not made at the time she brought action
against him.  They were made, rather, when his counsel raised a limitation
defence to her allegations of physical abuse.  I do not accept, either, her
evidence of other non-sexual abuse by William Antrobus.

[173]     I find
William and Joan Antrobus knew of Douglas Antrobus’ pedophilia.  I accept
the documentary evidence of their contact with him while he was an inmate in
the B.C. Penitentiary.  I do not believe their denials.  William Antrobus was
in Vancouver in the summer of 1947.  Herman Antrobus appears to have been
living in Vancouver at the time.  He is listed in the 1948 City Directory.

[174]    
First, it is inherently unlikely that the prison records would have no
basis in fact at all.  Second, the transcripts of the October 17, 2005 exchange
between Linda Antrobus and her parents contain this exchange.  Linda Antrobus
asked her parents why they permitted Douglas Antrobus to take her out when they
knew what sort of person he was:

LINDA:            You
always knew about this guy and you let him come here.  Why?  Why when you knew
he was like that would you let him in the door to take your children.  God.

JOAN:             Because –

WILLIAM:        We didn’t know.

JOAN:             – He had been to Uncle
Herman’s house and Uncle Herman said he’d changed.

That is cogent evidence that William and Joan Antrobus knew
that Douglas Antrobus was dangerous.  Her excuse for permitting Linda to go on
outings with him was that he had “changed”.

[175]     The
evidence does not satisfy me that Herman Antrobus and Shirley Antrobus are
liable.  I am not persuaded that they permitted her to be exposed to Douglas
Antrobus.

[176]     The
evidence does not establish that Linda Antrobus was abused in Herman’s home. 
Marie Richard denied that Linda Antrobus slept over when Douglas Antrobus was
babysitting.  She did not have a bunk bed.  Darlene Greenwood testified she began
living with Herman and his family in 1958.  Her evidence is that she shared a
bedroom with Marie.  There were two separate single beds.

[177]     Joan
Antrobus’ evidence is that the outings with Douglas Antrobus were never
overnight.

[178]     Herman’s
evidence is that he had banished Douglas Antrobus years before the alleged
events.

[179]     The
evidence of Linda Antrobus is hers alone.  Lack of corroboration by itself is
not fatal.  Many sexual assault allegations are made out without
corroboration.  But as I have expressed above, I have serious concerns with the
credibility of Linda Antrobus.

[180]     Did she
have a motive to concoct this version of events?  She resented the fact that
when Marie Ellis died in 1984, Herman Antrobus probated a will.  She suspects,
but was unable to prove, that a later will, leaving Ms. Ellis’ house to
her, existed.

LIABILITY

[181]     William
and Joan owed a duty of care to their daughter to take reasonable care to
protect her from danger.

[182]     I have no
trouble concluding that they failed to take reasonable care, and are therefore
responsible for the damage caused to Linda Antrobus.

[183]     I conclude
as well that Linda Antrobus’ parents owed her a fiduciary duty and they failed
to meet that duty.

[184]     The
relationship of parent and child is fiduciary in nature.  Parents have an obligation
to care for, protect and rear their children: M.M. v. R.F. [1997] B.C.J.
No. 2914.

[185]     The
traditional focus of breach of fiduciary duty is breach of trust.  The
beneficiary, here the plaintiff, is particularly vulnerable to or at the mercy
of, the fiduciary holding the discretion or power: D.M. v. R.L., 2014
BCSC 106.

CAUSATION

[186]     The
plaintiff must prove that the defendants’ negligence caused or materially
contributed to an injury.  The defendants’ negligence does not have to be the
sole cause of the injury.  It must be part of the cause beyond de minimis: 
Athey v. Leonati, [1996] 3 S.C.R. 458.

[187]     The
primary test for causation asks:  “But for” the defendant’s negligence, would
the plaintiff have suffered the injury?  The “but for” test recognizes that
compensation for negligent conduct should only be made where there is a
substantial connection between the injury and the defendant’s conduct”, Resurfice
Corp. v. Henke, 2007 SCC 7.  Here, there are other causes of the
plaintiff’s stress.  But there is a substantial connection between the sexual
assaults and the plaintiff’s symptoms.

[188]     There were,
and are, other stressors in the plaintiff’s life.  Indeed, the relationship
with her parents, the plaintiff’s understanding that she had been disinherited,
and her decision to bring an action against her parents for damages arising
from those circumstances are all causes of substantial stress and anxiety.

[189]     On the
“but for” test, the plaintiff’s claim must succeed.  That is, but for the
negligence of the parents, the injuries suffered by the plaintiff would not
have occurred.

[190]     The
psychological injuries Linda Antrobus sustained would not have occurred without
the sexual assaults of Douglas Antrobus.

THE INJURIES SUSTAINED BY LINDA ANTROBUS

[191]     The
evidence of Dr. Rana and Ms. Jones is clear and uncontradicted.  In
their opinion, the plaintiff suffers from post-traumatic stress disorder and
this condition arises from the sexual assaults.  Her depression, anxiety,
intrusive thoughts, and panic disorder were caused by the sexual assaults that
occurred when she was a child.

[192]     In Dr. Rana’s
latest report she opines that the plaintiff has shown some improvement in her
mental state and that her major depressive disorder has been in remission.

[193]     Dr. Schmidt
expressed the view that the plaintiff’s emotional state has deteriorated in
recent years.  He opines that this may be attributable to dealing with the
issues of sexual assault and her feelings of family betrayal more directly.  As
well, it may be caused by gaining new information regarding her parents’
awareness of the abusive experiences earlier in her life.

DAMAGES

Non pecuniary damages

[194]     The
plaintiff seeks an award of non-pecuniary and aggravated damages of $250,000.

[195]     Aggravated
damages often form part of the non-pecuniary damage award: C.C.B. v. I.B.,
2009 BCSC 1425.  However, those damages are typically awarded against the
perpetrator of the sexual assault, rather than in negligence or breach of
fiduciary duty against parents or other persons.

[196]     In S.(Y)
v. F.G.(C.) (1997), 26 B.C.L.R. (3d) 155 (C.A.) the plaintiff was sexually
abused by her stepfather for a period of seven years.  A jury awarded $350,000
in aggravated and non-pecuniary damages.  This was reduced to $250,000.

[197]     In C.C.B.
v. I.B., 2009 BCSC 1425, the plaintiff was sexually assaulted by her father
from the age of five to nine.  There were repeated and serious sexual
assaults.  She was awarded $250,000.

[198]     In M.(C.D.)
v. W.(J.A.) Estate, 2014 BCSC 1061, Madam Justice Brown recently stated
that the general range for non-pecuniary damages for sexual abuse is between
$150,000 and $265,000 in today’s dollars.  She awarded $200,000 in a case where
abuse took place over a long period of time.

[199]     In the
case before me there are several factors to be considered:

(a)      Frequency of the Assaults

[200]     The
plaintiff’s evidence is that they took place over a period of 12 to 18 months. 
Her mother’s evidence is that it was a period of four months that she went on
outings with her grandfather.  I conclude the duration was closer to the time
recalled by Linda Antrobus.  Joan Antrobus did not remember with any certainty
the gifts that Douglas Antrobus gave her.

(b)      Nature of the Assaults

[201]     Linda Antrobus
described touching and fondling, masturbation, digital penetration and
ultimately, vaginal penetration.  The assaults took place not only by her
grandfather but also she was subjected to sexual assaults by her grandfather’s
friend Farrell Salt.  She was also subjected to observing a sexual assault of
another child.

(c)      Age of the Complainant at the Time

[202]     Linda Antrobus
was very young, nine to ten when these assaults took place.

(d)      Vulnerability of the Complainant

[203]     The
plaintiff was very vulnerable.  She was a young girl and her grandfather was a
person in a position of trust.  She had been placed in her grandfather’s care
by her parents.

(e)      The Relationship between the Parties

[204]     The
plaintiff’s grandfather was in a position of trust and took advantage of his
power. Counsel for William and Joan Antrobus argued the plaintiff had no reason
to feel compelled to follow her grandfather’s instructions as he was a stranger
to her.  I disagree.  A young girl of nine would take the threats of her
grandfather seriously.

(f)       Whether Force or Violence was Used

[205]     The
plaintiff testified that there was no physical violence in the sense of
restraint or being beaten.  However, she was told she would be placed in a
“children’s prison” if she told anyone of the sexual assaults.  She believed
this.

(g)      Effect and Consequence on the Victim

[206]     Dr. Rana’s
conclusion is that the plaintiff has suffered from post-traumatic stress
disorder, depression, dysthymia and anxiety.

[207]     Moreover,
when she did disclose this to her parents she was given no consoling or
counselling.  In fact, neither of her parents has ever expressed any concern or
remorse for the injuries.  In the taped conversation of October 17, 2005,
William Antrobus told the plaintiff to “… just forget everything and get on
with your life.”

[208]     In all the
circumstances, I assess $195,000 as an appropriate measure of her non-pecuniary
damages.

Past Loss of Income Earning Capacity

[209]     In Midgley
v. Nguyen, 2013 BCSC 693, the Court stated that it is the plaintiff who
must establish on a balance of probabilities that the cause of her wage loss
was a result of the injuries she sustained from the sexual assaults and
negligence of the defendants.  If that is established, she should be put in the
position she would have been in but for the injuries.

[210]     Linda
Antrobus relies on the fact that she was not encouraged to pursue her education
and that her father belittled her and told her she was stupid.  Her evidence
was that she dreamed of becoming a teacher but did not feel able to do so
because she struggled in her attempts at post-secondary education due to an
inability to focus and concentrate.

[211]     Linda
Antrobus’s evidence is that she struggled in a typical workplace setting and
found it extremely uncomfortable when co-workers asked personal questions.  She
found life was much better suited to her as a freelance legal assistant and
worked through the Legal Freelance Centre from 1985 to the present.  She also
had some assignments from Kathy Jackson Associates in 1993-1994.

[212]     Betty
Garbutt, the owner of Legal Freelance Inc. testified that she placed the
plaintiff on legal assignments for some 29 years.  She testified when the
plaintiff initially started assignments she was ranked as a senior secretary. 
However, Ms. Garbutt observed that the plaintiff was very private and
withdrawn.  She had a direct and focussed look that made others feel as if she
were glaring at them.

[213]     Ms. Garbutt
testified that she received an unusually broad range of feedback from the
plaintiff’s placements mainly indicating that her technical skills were average
or above average but she had a disconcertingly direct stare which made others
uncomfortable and gave them the impression the plaintiff was angry with them.

[214]     The
evidence does not establish that the defendants’ breach of fiduciary duty and
negligence resulted in Linda Antrobus failing to achieve a career as a
teacher.  Linda Antrobus’s parents did not encourage her to pursue
post-secondary education.  There could be many reasons for this: the parents
themselves did not have post-secondary education.  They appear not to have
respected her abilities.

[215]     The
evidence does not establish that the sexual assaults caused the plaintiff not
to pursue teacher training.

[216]     On the
other hand, Ms. Garbutt’s concerns about Linda Antrobus’ interpersonal
skills led her to assign her work at the lower end of the pay scale.  Ms. Garbutt
testified the plaintiff has excellent technical skills and ability to
understand her work.

[217]     Ms.
Garbutt pays the plaintiff $25 per hour.  This is far below what a competent
legal assistant with 43 years’ experience should be earning.

[218]     I agree
with Dr. Rana’s opinion that the plaintiff’s psychiatric difficulty has
affected her ability to work in a consistent job and that those psychiatric
difficulties were caused by the defendant’s negligence and breach of fiduciary
duty.

[219]     I have
considered the report of economist Christine Clark and the information provided
concerning earnings of paralegals.  I assess past loss of earning capacity as
$220,000.

Future Loss of Income Earning Ability

[220]     A claim
for loss of future earning capacity requires considering putting the plaintiff
in the same position she would have been in but for the injuries.  The task of
the court is to compare the likely future of the plaintiff’s working life if
the injuries had not occurred with the plaintiff’s likely future life after the
injuries.

[221]     The
plaintiff’s position is that she would have become a teacher or a para-legal,
absent the sexual assaults, and that she has a continuing impairment to her
income earning capacity.

[222]     The court
had the benefit of the report of Christine Clark, an economist with Associated
Economic Consultants Ltd.

[223]     Her
evidence is that the present value of the plaintiff’s future loss of earnings
and benefits from June 2, 2014 to age 70, assuming she had become a para-legal
and worked to age 65, would be $11,100.  Alternatively, if the plaintiff worked
as a teacher to age 70, her future loss of earnings would $107,500.

[224]     The
evidence of Ms. Garbutt is that the plaintiff has an ongoing income loss
of $5,000 to $7,000 per year.

[225]     The
plaintiff’s evidence is that she will continue to work to age 67 at least, and
more likely to age 70.

[226]     I conclude
that an appropriate award under this heading is $20,000.

Special Damages

[227]     Linda Antrobus
is entitled to recover reasonable out of pocket expenses she incurred as a
result of the assaults.  That is based on the principle that an injured person
is to be restored to the position he or she would have been in but for the
tortious conduct: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at para.
78, X. v. Y., 2011 BCSC 944 at para. 281.

[228]     The
plaintiff’s claim is for damages of $15,679.38 as follows:

[229]    
I am not satisfied that the diabetes related expenses were incurred as a
result of the plaintiff’s injuries.  I award $10,861.99.  This is made up of
the mileage claim, the costs for Ms. Jones and the cost of
anti-depressants and sleep aids.

Future Cost of Care

[230]     The test
for assessing future care costs is whether the costs are reasonable and whether
the items are medically necessary: Milina v. Bartsch.

[231]     The
evidence of Dr. Rana is that the plaintiff will require treatment with
anti-depressant medication for an indefinite period of time.

[232]     Ms. Jones
recommends weekly counselling treatment at $100 per treatment.

[233]     I agree
with these recommendations.

[234]     The
plaintiff’s claim includes an amount for diabetes medication and supplies.  I
am not persuaded that those arise from the injuries.

[235]    
I award $12,000 for future cost of care.

Punitive Damages

[236]    
The purpose of punitive damages is to punish a defendant and deter
others from similar wrongs.  Factors to be considered include the
reprehensibility of the conduct being punished and the absence of remorse: Russ-Essandoh
v. Russ and Collison, 2002 BCSC 1275.

[237]    
William and Joan Antrobus took no steps to assist the plaintiff when
this abuse was disclosed to them.  They have continued to deny responsibility
for what occurred.  There has been no remorse.

[238]    
In the circumstances an award of $25,000 in punitive damages is
appropriate.

CONCLUSION

[239]    
In conclusion, I find the defendants William and Joan Antrobus to be
liable to Linda Antrobus for breach of fiduciary duty, and negligence.  On the
facts, it is clear that they failed to protect their infant daughter from an
individual whom they knew, or ought to have known, was dangerous.  I cannot
find on the evidence that William Antrobus sexually abused Linda Antrobus. I
find the defendants Herman and Shirley Antrobus are not liable to the plaintiff
for the reasons as set out above.

[240]     I award
damages in the amount of $482,861.99, representing the sum of the following:

_____________________________________
The Honourable Mr. Justice S.F. Kelleher