



COURT OF APPEAL FOR ONTARIO

CITATION: Cavanaugh v. Grenville Christian College, 2021 ONCA
    755

DATE: 20211026

DOCKET: C68263

Juriansz, van Rensburg and Sossin JJ.A.

BETWEEN

Lisa Cavanaugh, Andrew
    Hale-Byrne, Richard van Dusen,

Margaret Granger and Amanda
    Aylesworth the Executor

for the Estate of Tim
    Blacklock

Plaintiffs (Respondents)

and

Grenville Christian
    College
, The Incorporated Synod of

the Diocese of Ontario,
Donald
    Farnsworth and Betty

Farnsworth for the Estate
    of Charles Farnsworth
, Betty

Farnsworth,
Judy Hay the
    Executrix for the Estate of J.

Alastair
and Mary Haig

Defendants (
Appellants
)

Paul J. Pape and David G. Boghosian, for the appellants

Loretta Merritt and Sabrina Lombardi, for the
    respondents

Heard: May 4, 2021 by video conference

On
    appeal from the judgment of Justice Janet Leiper of the Superior Court of
    Justice, dated April 24, 2020, with reasons reported at 2020 ONSC 1133.

van Rensburg J.A.
:

A.

OVERVIEW

[1]

This is an appeal of a judgment following a common issues trial in a
    class proceeding. The respondents are the representative plaintiffs in a class (the
    Class) comprised of 1360
[1]
former boarding students who attended Grenville Christian College
    (Grenville), a private school in Brockville, Ontario, between 1973 and 1997
    (the Class Period). They brought a class action against the school and its
    former headmasters alleging abusive practices, including corporal punishment,
    public humiliation, and other excessive discipline.

[2]

The appellants admitted that a duty of care and fiduciary duties were
    owed to the Class, and specified on consent the content of such duties. The
    trial judge concluded that there were class-wide breaches of such duties throughout
    the Class Period, and she determined that punitive damages were appropriate.

[3]

The appellants ask that the judgment below be set aside and the action
    dismissed, or alternatively, that the matter be returned to the Superior Court
    for trial before another judge.

[4]

For the reasons that follow, I would dismiss the appeal.

[5]

Irrespective of how the issues have been framed on appeal, the
    appellants are essentially attempting to relitigate matters that were
    determined against them at trial, after a thorough review by the trial judge of
    the evidence and the proper application of the relevant legal principles. The
    trial judge did not, as alleged on appeal, misapprehend or misapply the
    evidence of Dr. Rosemary Barnes, who testified as an expert witness for the respondents.
    Nor did she ignore the evidence of the appellants witnesses. Contrary to the
    appellants overarching theme on this appeal, this was not a case of individual
    negligence writ large, where the trial judge found systemic negligence based
    only on abusive practices directed at individual students. In her extensive and
    thorough reasons the trial judge assessed the testimony of the witnesses called
    by both sides, as well as contemporaneous documents, which provided ample
    support for her findings of systemic negligence and breach of fiduciary duty on
    a class-wide basis during the Class Period. The trial judge applied the principles
    from
Whiten v. Pilot Insurance
, 2002 SCC 18, 58 O.R. (3d) 480 to
    conclude that punitive damages were warranted.

[6]

I will begin by setting out briefly the background to the common issues
    trial. I will then provide a summary of the trial judges reasons for judgment,
    followed by a description of the issues raised in this appeal, and my analysis
    and conclusions on each ground of appeal.

B.

BACKGROUND TO THE COMMON ISSUES TRIAL

[7]

The respondents commenced their proposed class proceeding against the
    appellants and other defendants in 2012. The action as against the Incorporated
    Synod of the Diocese of Ontario was dismissed:
Cavanaugh v. Grenville
    Christian College
, 2012 ONSC 2995, affd 2013 ONCA 139, 360 D.L.R. (4th)
    670. As against Betty Farnsworth and Mary Haig the action was discontinued:
Cavanaugh
    v. Grenville Christian College
, 2012 ONSC 2398.

[8]

The Divisional Court, in a decision reported at 2014 ONSC 290, certified
    the action as a class proceeding and identified the common issues to be decided
    at trial as follows:

1.

Did the defendants owe a duty of care to the plaintiffs?

2.

Did the defendants breach the duty of care owed to the plaintiffs?

3.

Did the defendants owe fiduciary obligations to the plaintiffs?

4.

Did the defendants breach their fiduciary obligations to the plaintiffs?

5.

Does the conduct of the defendants merit an award of punitive damages?

[9]

The appellants admitted common issues 1 and 3  that both a duty of care
    and a fiduciary duty were owed by each of the defendants to the Class. The
    parties agreed that the applicable duties were as follows:

Duty of Care: Grenville
[2]
owed a duty of care to the plaintiffs and the Class Members to take reasonable
    steps to care for and ensure their safety and to protect them from actionable
    physical, psychological and/or emotional harm and provide them with a safe,
    secure learning environment.

Fiduciary Duty: Grenville owed a fiduciary duty to the
    plaintiffs and the Class Members to refrain from harmful acts involving
    disloyalty, bad faith or self-interest.

[10]

The common issues trial, which lasted five weeks, addressed whether
    there had been a class-wide breach of such duties, and whether punitive damages
    were warranted.

[11]

The respondents asserted that there was systemic negligence in the
    operation of Grenville, resulting in foreseeable harm to the Class members.
    They called evidence from twelve former students and three former Grenville
    staff members, as well as two expert witnesses, Dr. Paul Axelrod (on the
    applicable standard of care for educational and disciplinary practices for
    private schools in Ontario during the Class Period) and Dr. Barnes (on the
    abuse of children, institutional abuse, and the impacts of childhood abuse,
    maltreatment and trauma).

[12]

The appellants position at trial was that, while Grenville was a strict
    school that treated certain individual students inappropriately by todays
    standards, the practices at the school were not in and of themselves abusive,
    and although there were isolated incidents of mistreatment of certain students
    (one-offs), there was no systemic breach of Grenvilles obligations to the
    plaintiff Class. They called as witnesses ten former students and three former
    staff members of Grenville. They did not offer any expert evidence.

[13]

The trial judge ruled in favour of the respondents. She concluded that
    systemic negligence on the part of the appellants was made out: that in the
    operation of the school during the Class Period the appellants had breached the
    duty of care they owed to the Class members, and that they had also breached
    their fiduciary duty to the Class. She also held that punitive damages were
    appropriate.

C.

THE TRIAL JUDGES REASONS

[14]

The trial judge provided lengthy reasons in which she set out the issues
    to be determined, conducted a detailed review of the evidence, and made
    findings of fact with respect to the alleged incidents of abuse and the
    operation of Grenville.

[15]

The first issue to be determined by the trial judge was whether the
    appellants had breached their duty of care to the students. She explained that
    this entailed a consideration of whether Grenvilles operations, including its
    disciplinary policies and practices, fell below the standard of care and could
    reasonably have been foreseen to lead to the risk of harm in the form of
    emotional trauma to students: at para. 25. The trial judge noted that systemic
    negligence would depend on how the appellants ran the school, and did not
    require every member of the Class to have suffered the same or any of the abuse
    that was alleged: at paras. 27-28. In considering the first issue, the trial
    judge identified two questions: (a) What was the standard of care for boarding
    schools in Ontario during the Class Period?; and (b) Did the evidence establish
    that Grenvilles practices and policies fell below the standard of care?: at
    para. 29.

[16]

Before applying the evidence to these questions, the trial judge addressed
    the appellants challenges to the credibility and reliability of certain
    witnesses called by the respondents (this was the main focus of the appellants
    written submissions at the close of the trial). She observed that there were
    many areas of agreement among the plaintiff and defence witnesses, and that the
    areas of disagreement fell into areas of individual experience, perception,
    atmosphere and details of what was said and done to individual students: at para.
    32. She also noted that, for each type of disciplinary response, whether
    corporal punishment, individual correction sessions or discipline work
    assignments, multiple witnesses for both sides confirmed that the impugned
    techniques were used during the Class Period: at para. 34.

[17]

After considering certain matters of general application to the question
    of credibility (such as the role of demeanour and the effect of a failure to
    complain on a witnesss credibility), the trial judge assessed the evidence of
    the respondents lay witnesses with detailed reference to the appellants
    specific arguments about their credibility and reliability, and the defence
    evidence to the contrary, and she made findings of fact based on the evidence
    she accepted: at paras. 32-134. Among those findings were that students on
    discipline were taken out of class and routinely assigned demeaning tasks;
    that students were often woken up with late night accusations of wrongdoing
    with or without foundation, yelled at and made to run or to pray; that there
    were frequent public assemblies at which individual students were shamed by
    staff and other students for real or perceived transgressions of rules, as well
    as private light sessions requiring students to confess to wrongdoing; that
    there were incidents of excessive paddling; and that school administrators
    used gendered, derogatory terms to refer to girls.

[18]

The trial judge returned to the first question: What was the standard of
    care for boarding students in Ontario during the Class Period? She provided a
    brief overview of Dr. Axelrods opinion evidence: at paras. 135-44. He
    described the new standards which were in place throughout the Class Period,
    which began with the 1968
Report of the Provincial Committee on Aims and
    Objectives in the Schools of Ontario
(the Hall-Dennis report). In a 1969
    letter to all schools in Ontario, the Ministry of Education set out its
    position on such standards, which included: abolishing all corporal and other
    degrading forms of punishment; creating engaging learning environments;
    emphasizing teaching in an atmosphere of respect and trust; and describing the
    expectation that teachers serve as guides, advisers and facilitators, rather
    than authoritarian leaders. Although corporal punishment was still lawful, the
    Hall-Dennis report called for its abolition, and it was banned at most private
    schools in Ontario by 1980. Where schools used corporal punishment, they
    developed protocols for its administration and documented its use.

[19]

The trial judge then turned to how Grenville operated as an institution.
    She considered the evidence of its practices and whether they fell below the
    standard of care, and whether the evidence established systemic negligence by
    Grenville in relation to the Class: at para. 145.

[20]

The trial judge described the history of Grenville, including its
    founding in 1969 as Berean Christian School, its eventual adoption of the ideas
    and practices of a charismatic religious sect called the Community of Jesus (COJ),
    and how the doctrine and practices of the COJ informed the schools new
    philosophy when the school changed its name to Grenville Christian College in
    1974. The trial judge described the schools structure, and the submission of
    the schools staff to public correction for their various sins, including
    regular light sessions. She noted the significant level of involvement
    between the staff and boarding students, including weekend visits to staff
    homes for family nights, when students were encouraged to refer to the staff
    members as mom and dad: at paras. 146-90.

[21]

The trial judge described how students could be disciplined for a
    variety of offences: for breaches of various written and unwritten rules,
    including rules precluding contact between boys and girls. She accepted
    evidence that denigrating terms such as whores and bitches in heat were
    used by the administrators to refer to girls and women, that there was an
    active policing of girls bodies, mannerisms and clothing, and that there were
    demeaning epithets and actions toward male students who were believed to be homosexual:
    at paras. 207, 222 and 233.

[22]

The trial judge accepted Dr. Axelrods evidence that, in its operational
    philosophy, Grenville was unlike other educational institutions in Ontario at
    the time: at para. 244. Referring to a 1981 Grenville publication How Do We
    Here at Grenville Nurture Christian Values?, Dr. Axelrod described the values
    expressed in the document as harsh, categorical and unusual. He concluded
    that Grenvilles philosophy, as expressed in the 1981 document, was repressive:
    at paras. 246-49.

[23]

The trial judge also accepted the expert evidence of Dr. Barnes with
    respect to conduct that would constitute abuse. Dr. Barnes testified about the
    risks inherent in total institutions, where children live apart from their
    families for extended periods of time and where: (a) rules govern almost all aspects
    of daily life; (b) students have little to say about how these rules are
    administered; (c) there are arbitrary or unpredictable orders, rather than
    established policy; and (d) appeals or protests are inhibited. The trial judge
    accepted Dr. Barnes evidence that Grenville operated as a total institution
    and about the risk of disconnection, degradation or powerlessness experienced
    by children in the care of such institutions: at paras. 250-59.

[24]

The trial judge then turned to consider whether Grenville was
    systemically negligent because of its practices. She referred to the evidence
    from staff and students spanning the entire Class Period about the practices at
    issue and the fact that the attitudes, practices and philosophies that were the
    genesis of these disciplinary methods were described in school writings and
    records. In each case the trial judge identified aspects of the particular
    practices that breached the standard of care and she concluded that the
    practices and harms were systemic. These included:

i)

being on discipline, when students were taken out of class for days or
    weeks at a time, not permitted to wear their school uniforms, and assigned work
    or disciplinary activities. The disciplinary methods included enforced
    isolation from peers, silence and in some cases excessively lengthy, degrading,
    painful or dangerous forms of work duties: at paras. 262-76;

ii)

corporal punishment, such as paddling  there was excessive use of the
    paddle (as to number of strokes and causing injury and prolonged pain) and
    arbitrariness in its administration  as well as other forms of physical
    contact (slapping, pushing or dragging a child) that constituted assault: at
    paras. 277-95;

iii)

all-school assemblies and correction sessions  a routine practice known
    as light sessions, where students were publicly humiliated by staff and other
    students as a form of discipline that according to Dr. Axelrod was unheard of
    in other educational venues: at paras. 296-309;

iv)

taking students to the boiler room to show them furnace flames while
    telling them they would go to hell if they did not behave: at paras. 310-12;

v)

sexualized abuse, such as requiring sexual confessions, demeaning female
    students as sluts, whores, Jezebels, bitches in heat, and vilifying
    homosexuality: at paras. 313-27.

[25]

The trial judge explained in each case the harm that was caused by the practice
    and how the practice was systemic. Putting students on discipline was a
    systemic practice that was used to enforce rules, expectations and norms across
    the student body, and was a practice created and applied by the headmasters.
    There was no written policy or protocol and the punishments were arbitrarily
    meted out: at para. 276. The use of physicality and the paddle was
    embedded in Grenvilles operational policy: at para. 295. The light sessions
    were admitted by the appellants to be harmful to the individual students,
    however the trial judge accepted Dr. Barnes opinion evidence that harm can be
    experienced by both those on the receiving end of the attention and those
    encouraged to participate, thus violating their own moral codes and shaming
    their peers: at para. 307. Exposing children to the flames of hell was a
    form of abuse known as terrorizing: at para. 312. With respect to sexualized
    abuse, the trial judge rejected the argument that harm from the use of
    epithets against women was not foreseeable; instead, she accepted the
    uncontradicted expert evidence that Grenvilles practices posed a real risk of
    emotional harm concerning the sexuality of boys and girls. The standards throughout
    the Class Period recognized theories of child and adolescent development which
    the administration at Grenville explicitly rejected: at para. 318.

[26]

The trial judge then addressed and rejected the defence argument that
    Grenville did not fall below the standard of care because a credible body of
    former students believed they had thrived as a result of their education at the
    school. She noted first that the evidence of what life at Grenville was like
    was remarkably consistent among the plaintiff and defendant witnesses, and as described
    in school writings and records. The fact that different students had different
    reactions to their experiences at Grenville, and some avoided various
    disciplinary measures was consistent with Dr. Barnes evidence about
    resiliency factors, which can mitigate the impact of abuse. The trial judge
    also accepted evidence that some students may have had the benefit of
    additional protective factors relative to their familys contributions and
    status. She noted that the appellants would only be liable according to the
    percentage of students who established actual harm at the next stage of the
    proceedings: at paras. 328-38.

[27]

The trial judge rejected the defence submission that the analysis should
    proceed with the question of the school atmosphere, which could allow the
    analysis to drift into the direction of purely subjective experience. She
    stated at para 335:

I have focused instead on the more objectively measurable
    evidence of Grenvilles institutional methods and routines, its norms and
    expectations, and how it enforced those norms and expectations as a way of
    understanding whether it breached the standard of care and its duties to its
    students.

[28]

The trial judge accepted that the appellants had breached their
    fiduciary obligations to the Class through their harmful disciplinary practices
    and the failure to have any policies or procedures in place to investigate
    abuse of students. She referred to the uncontradicted expert evidence that
    Grenvilles practices of enforcing its rules were abusive, caused harm to
    students and placed the student body at risk: at paras. 346-56.

[29]

Finally, the trial judge concluded that punitive damages were
    appropriate. There had been a 24-year course of conduct which amounted to a
    marked departure from the educational standards in Ontario. Grenville had
    knowingly created an abusive, authoritarian and rigid culture which exploited
    and controlled developing adolescents who were placed in its care, and in doing
    so, caused harm to some students and exposed others to the risk of harm. The
    trial judge concluded that punitive damages were warranted, although Grenville
    was no longer in existence, because the policy aims of denunciation and general
    deterrence went beyond sending a specific message to the administration of the
    particular school. The question of the quantum of punitive damages would be
    determined at the next stage of the litigation: at paras. 357-69.

D.

ISSUES ON APPEAL

[30]

This appeal focuses largely on the trial judges conclusion that the
    appellants engaged in systemic negligence  in particular, the appellants
    challenge her findings with respect to their breaches of the standard of care.

[31]

A trial judges conclusion that a defendant breached the standard of
    care is a finding of mixed fact and law, which, absent an extricable legal
    error, is subject to review for palpable and overriding error on appeal:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 37. A
    misapprehension of the evidence would justify appellate intervention where it
    is obvious and goes to the very core of the outcome of the case:
Carmichael
    v. GlaxoSmithKline Inc.
, 2020 ONCA 447, 151 O.R. (3d) 609, at para. 125.

[32]

The appellants advance two broad submissions. First, they say that the
    trial judge erred in her use of Dr. Barnes evidence to conclude that there had
    been a breach of the standard of care. Although they allege specific problems
    with the trial judges reliance on Dr. Barnes evidence, the thrust of their
    argument is that Dr. Barnes evidence did not speak to what constituted
    abuse during the Class Period. As such, the trial judge ought not to have
    relied on Dr. Barnes opinion evidence to conclude that certain aspects of
    Grenvilles operations could reasonably have been foreseen to lead to the risk
    of harm in the form of emotional trauma to students.

[33]

Second, the appellants argue that the trial judge erred in rejecting the
    defence evidence about Grenvilles operations. While she reviewed the
    respondents evidence in detail, commenting on the credibility and reliability
    of each of their witnesses, she did not undertake the same review of the appellants
    evidence. The appellants say that, had their evidence been considered, the
    trial judge would have concluded that there were only isolated breaches of the
    standard of care owed to individual students, and there was no systemic
    negligence.

[34]

In their factum, the appellants also assert that the trial judge erred
    in her conclusions that they breached their fiduciary duty and that punitive
    damages were warranted.

E.

ANALYSIS

Issue One: Did the Trial Judge Err in Her Use of Dr. Barnes
    Evidence?

[35]

The appellants contend that the trial judge erred in her use of Dr.
    Barnes evidence to conclude that they engaged in systemic negligence because:
    (1) Dr. Barnes relied on concepts of abuse and the total institution
    concept, which they say are modern constructs that were not recognized during
    the Class Period; and (2) Dr. Barnes did not apply her own definition of
    emotional harm when she testified about certain practices being abusive and
    harmful. After briefly describing the role of Dr. Barnes evidence at trial, I
    will address each of these arguments in turn.

(1)

The Role of Dr. Barnes Evidence at Trial

[36]

There were two components to the standard of care evidence. Dr. Axelrod,
    who is an academic with extensive experience researching, writing, and teaching
    in the fields of educational history and policy in Ontario, was specifically
    qualified at trial as the respondents standard of care expert. He testified
    about educational philosophies and practices in Ontario public and private
    schools during the Class Period. His opinion was that many of the practices
    that were alleged to have been in place at Grenville during the Class Period were
    inconsistent with the practices in public and private schools elsewhere in
    Ontario, including government-mandated expectations, and fell below the
    standard of care. The appellants do not challenge the trial judges reliance on
    Dr. Axelrods evidence.

[37]

Dr. Barnes was qualified at trial, without objection by the appellants,
    as an expert in psychology, and in particular the abuse of children, including
    institutional abuse and the impacts of childhood abuse, maltreatment and
    trauma. She provided evidence about the harms that could be caused by various
    practices. Apart from certain practices that were alleged to have physically
    harmed students, it was alleged that the impugned disciplinary practices caused
    emotional or psychological harm.

[38]

While Dr. Axelrod provided his opinion about practices that breached the
    standard of care, Dr. Barnes evidence was also relevant to the breach of the standard
    of care analysis. She spoke to the issue of harm: to what extent would each of
    the impugned practices that fell below the standard of care have caused actual
    or anticipated harm to Grenville students? Her evidence was directed to whether
    the impugned practices were abusive, and whether they entailed a risk of harm to
    individual students who were at the receiving end of the various forms of
    discipline and to the Class as a whole.

[39]

The duty of care admitted to have been owed by the appellants to the
    respondents and the Class members included to take reasonable steps to protect
    them from actionable physical, psychological and/or emotional harm. Although in
    this appeal the parties do not agree about the role of foreseeability of harm
    in the standard of care analysis generally, I accept that it was relevant for
    the trial judge in this case to determine whether the impugned practices at
    Grenville could lead to emotional harm. Hence, the trial judges
    characterization of the respondents claim was that Grenvilles operations,
    including discipline policies and practices, fell below the standard of care and
    could reasonably have been foreseen to lead to the risk of harm in the form of
    emotional trauma to students: at para. 25.

[40]

As such, Dr. Barnes evidence drew the link between the conduct that was
    alleged to have been inconsistent with educational and disciplinary practices
    at the time, and the actual or potential harmful effect of such conduct on
    Class members.

(2)

Dr. Barnes Use of 2016 and 2020 Documents

[41]

The appellants first argument is that the trial judge accepted Dr.
    Barnes evidence about concepts of abuse and total institutions that were
    based on documents published long after the Class Period had ended. They say
    that the trial judge misconstrued Dr. Barnes evidence and overlooked the fact
    that she was testifying about modern concepts of abuse and harm. The appellants
    go so far as to argue that there was
no evidence
of foreseeable
    emotional harm during the Class Period.

[42]

I will deal first with Dr. Barnes reference to a document, prepared by
    the Ontario Association of Childrens Aid Societies in 2016, entitled The
    Ontario Child Welfare Eligibility Spectrum (the 2016 Manual). Noting that
    the 2016 Manual had been revised many times over the years, Dr. Barnes said that
    the document was helpful in providing definitions of various forms of
    maltreatment and also in terms of evaluating the seriousness of incidents of
    maltreatment or patterns of maltreatment.

[43]

Contrary to the appellants argument, the fact that Dr. Barnes referred
    to various categories of child abuse  including spurning, terrorizing, isolating
    and exploiting  using terminology that was employed in the 2016 Manual, did
    not mean that these were new concepts of abuse and harm that were unknown
    during the Class Period. There was nothing in Dr. Barnes evidence to suggest
    that the categories of abuse and the emotional and psychological harm that were
    identified in the 2016 Manual came into being only at that time. To the
    contrary, the document simply provided a helpful resource for Dr. Barnes in identifying
    certain types of abusive conduct.

[44]

Nor did Dr. Barnes limit herself to the descriptions in the 2016 Manual
    when she gave her opinion evidence. She offered her own explanations for
    spurning and terrorizing, as well as sexualized abuse, and she explained
    how different types of abusive conduct could lead to emotional harm. She
    testified that many of the Class members experienced physical and emotional
    abuse, including spurning, terrorizing, isolating or exploiting, that left
    these individuals at risk of developing psychological difficulties. Dr. Barnes provided
    her opinion about the harmful effects of the impugned disciplinary practices on
    Class members who were the targets of the practices, and those who were exposed
    to them.

[45]

The appellants acknowledge that there was nothing wrong with Dr. Barnes
    use of a 2016 document to describe abuse and emotional harm arising from the impugned
    practices during the Class Period. They say however, that under
    cross-examination Dr. Barnes admitted that the standard of abuse was different
    during the Class Period and that she did not know what the standard was at that
    time. That left the trial judge with no evidence about what would constitute
    abuse and emotional harm during the Class Period. The appellants rely on the
    following passage:

Q. Now, if I could take you to page 26 of your report. Under
    item three, Overview of Abuses[a]nd in the first sentence under that heading
    you write:

In outlining the ways in which
    [Grenville] staff subjected class members to abuse, I use the categories and
    definitions developed by the Ontario Association of Childrens Aid Societies.

A. Yes.

Q. And you cite from their 2016 manual.

A. Yes.

Q. Eligibility Spectrum.

A. Yes.

Q. And I suggest that you used the criteria in the Childrens
    Aid Society document so that you would have an objective basis for evaluating
    whether there had been abuse taking place at Grenville.

A. Yes.

Q. So, that it wouldnt be resorting to your own, or anyone
    elses, subjective views of what constitutes abuse.

A. Well, Id have their  yes, Id have their guidelines to 
    to use in terms of looking at individual instances.

Q. And thats one of the reasons you used their guidelines so
    that it wouldnt just be some subjective impression of what abuse entails.

A. Yes.

Q. Now if you can  can I have Exhibit 15 put to the witness?
    This is a 2016 publication.

A. Yes.

Q. It reflects the values and ideals and notions of abuse as of
    2016.

A. The most current ideas, yes.

Q. And if we can go to page 125 of Exhibit 15, it says, History
    of the Eligibility Spectrum.

A. Yes.

Q. (Reading):

The Ontario Child Welfare
    Eligibility Spectrum, originally called the Intervention Spectrum, was first
    developed by Mary Ballantyne and George Leck of Simcoe CAS in 1991 with early
    and ongoing support from Margaret Morrison of Halton CAS. Original construction
    of the spectrum incorporated some of the Magura and Moses 1986 Child Wellbeing
    Scales categories and descriptors which have since been considerably modified.

And then the last sentence of this paragraph says, In 1995a
    major revision of the spectrum occurred...

Q. Im suggesting that we are dealing here in this case with
    notions of abuse that occurred 40  20, 30 or even 40 years ago, right?

A. In some --- in some cases, yes, possibly.

Q. And Im suggesting to you that notions of what constitutes
    abuse, particularly psychological or emotional abuse, have evolved considerably
    in those 20 or 30 or 40 years, up till 2016 when these guidelines were issued?

A. I guess the ideas have evolved.

Q. And you have not indicated anywhere in your report whether
    these 2016 guidelines reflect the values with respect to abuse that existed in
    the 70s or 80s, have you?

A. I havent tried to make a determination in the report about
    that.

[46]

The appellants contend that this passage reflects an admission by Dr. Barnes
    that what constituted abuse was different during the Class Period from what she
    had described, and that she did not know what the standard for abuse was during
    the Class Period. From that, they argue that there was no evidence from which
    the trial judge could have determined that the risk of emotional harm arising
    from the various impugned practices at Grenville was reasonably foreseeable.

[47]

I disagree. The trial judge did not misinterpret or misapply Dr. Barnes
    evidence in concluding that the impugned practices at Grenville during the
    Class Period resulted in foreseeable emotional harm to students. And, as I will
    explain, there was considerable other evidence to support the trial judges
    conclusion that there was foreseeable emotional harm.

[48]

First, Dr. Barnes did not admit that the concept of what constituted
    harm to children was in fact different during the Class Period from what was
    set out in the 2016 Manual. While she was asked some questions in relation to
    corporal punishment and sexualized abuse, to suggest that some aspects of these
    impugned practices might not have caused harm, there was nothing in Dr. Barnes
    evidence to suggest that the various types of emotional harm she described as
    resulting from the impugned disciplinary practices at Grenville would not have
    been foreseeable to the appellants during the Class Period.

[49]

At its highest, the passage from Dr. Barnes cross-examination
    acknowledges that notions of what constitutes abuse have evolved over time. How
    such notions evolved, and whether a school administrators understanding of
    abuse may have differed in any material way during the Class Period was not
    pursued. There was no further exploration of this issue in a way that might
    have assisted the appellants in the argument they are now making. Counsel did
    not, for example, put earlier versions of the 2016 Manual to Dr. Barnes to
    suggest, as is argued on appeal, that concepts like spurning were unknown
    during the Class Period. The appellants did not put forward their own expert
    evidence to support the point that they ask this court to now accept  that the
    forms of emotional abuse about which Dr. Barnes testified did not in fact constitute
    abuse during the Class Period.

[50]

Nor was there anything else in the evidence that
    suggested that the actual and anticipated emotional and psychological harms
    about which Dr. Barnes testified  resulting from excessive, public,
    humiliating and degrading disciplinary practices  would not have been
    recognized by a reasonable school administrator during the Class Period. The
    evidence was to the contrary. It supported the conclusion that during the Class
    Period the appellants knew or ought to have known that the impugned practices
    could lead to emotional harm.

[51]

Dr. Axelrods evidence outlined the Ontario governments
    position calling for the abolition of all corporal and other degrading forms
    of punishment and the new educational atmosphere being one of respect and
    trust. Indeed, Dr. Axelrod testified that Grenville engaged in disciplinary and
    informal teaching practices during the Class Period that were abusive and at
    odds with the standards practiced in public and private schools in Ontario at
    that time. He explained that it was a time when there was increasing attention
    to human rights, childrens rights and child abuse, and that Grenvilles
    disciplinary practices arose from unusual and highly anachronistic values that made
    a virtue out of pain and suffering and led to the harmful treatment of
    students over many years. In concluding that Grenville administrators did not
    meet the standard of care during the Class Period Dr. Axelrod stated that
    responsible teachers and administrators in other private and public schools at
    the time would not have permitted such extreme practices and would have called
    to account any staff responsible for such treatment.

[52]

The standards about which Dr. Axelrod testified
    were not curriculum standards, but rather pedagogical standards directed toward
    avoiding harm to children. I accept the respondents submission that it was
    obvious during the Class Period, just as it is now, that excessive corporal
    punishment, practices that on their face were degrading and demeaning, and
    demanding total submission and obedience, would be harmful to students.

[53]

As the respondents point out, there was evidence
    that Grenvilles administrators were aware that their impugned practices put students
    at risk of harm. As the trial judge noted at paras. 48 and 49 of her reasons, feedback
    in the form of a survey sent to some parents in 1987 included comments that humiliating
    students in all-school assemblies was appalling and that the honour code, where
    students were expected to inform on one another was simply horrific and [had]
    to be stopped. The trial judge concluded at para. 367, that Grenville knew
    about the parental disapproval of these practices which did not change until
    Charles Farnsworth (a founder and former headmaster) had retired. In describing
    the history of Grenville, she noted at para. 169 that Al Haig (another founder
    and former headmaster), had acknowledged in tape recordings filed at the trial that
    Grenville philosophy [ran] counter to the accepted philosophy of the day.

[54]

In
Rumley v. British Columbia
, 2001 SCC 69, [2001] 3 S.C.R. 184, the Supreme Court recognized
    that, in a class proceeding involving allegations of systemic negligence, the
    standard of care may vary over the relevant time period such that the court may
    have to provide a nuanced answer to the common question of standard of care: at
    para. 32. In the present case however, the trial judge concluded that the
    impugned practices constituted a breach of the standard of care throughout the
    Class Period. Except in relation to corporal punishment and teachings about
    sexuality, there was no suggestion by the appellants at trial that the standard
    of care had changed during the Class Period in any way that might affect the
    trial judges determination of whether a practice that constituted a breach of
    the standard of care to the Class at one point during the Class Period would
    not have constituted a breach at an earlier stage. While the subject of changing
    perceptions of emotional harm was broached to some extent in Dr. Barnes
    cross-examination (in the passage set out above), there was no admission that
    the conduct which constituted abuse and the emotional harm about which she
    testified would not have been recognized as such at any point during the Class
    Period. Nor was there any other evidence at trial to support what is argued on
    appeal  that the abuse about which Dr. Barnes testified would not have
    constituted abuse during the Class Period.

[55]

Finally, I note that the argument made here  that there was no
    evidence that emotional harm would have been reasonably foreseeable during the
    Class Period because standards of abuse and harm had changed  was not advanced
    in oral and written closing submissions at trial.
With respect
    to three types of conduct that the appellants trial counsel acknowledged were concerning:
    the public light sessions, the corporal punishment or paddling and the
    denigrating comments about young girls, he invited the trial judge to consider
    whether they gave rise to a reasonable risk of mental injury. He did not
    suggest that anything turned on
changing
concepts of what constituted abuse
    or harm. Rather, he submitted that, while embarrassment and discomfort would
    have been experienced by students singled out during light sessions, other
    students would not have been harmed, and that epithets about women, while
    deplorable and inappropriate would not foreseeably have caused mental harm.
    The trial judge addressed and rejected these specific arguments at paras. 307-9
    and 317-21 of her reasons.

[56]

The appellants written submissions at trial focused
    on the credibility and reliability of the evidence of the respondents
    witnesses, as to whether and how frequently the alleged acts took place and
    whether they amounted to systemic negligence or were one-off reactions to
    individual circumstances. While there were challenges to Dr. Barnes opinion
    evidence, they did not include any allegation that she had relied on standards
    of abuse or emotional harm that were unknown during the Class Period. As the
    appellants counsel correctly observed in argument on appeal, nobody addressed
    changes in the standard of what constituted abuse at trial.

[57]

Accordingly, I would reject the appellants argument that the trial
    judge erred in relying on Dr. Barnes evidence about abuse and emotional harm
    because she was testifying about 2016 concepts, or that there was no evidence
    of foreseeable emotional or psychological harm during the Class Period.

[58]

The appellants make a similar argument about another aspect of Dr.
    Barnes evidence that was referred to and accepted by the trial judge: the characterization
    of Grenville as a total institution. They contend that the trial judge erred
    in finding a breach of the duty of care based on Dr. Barnes characterization
    of Grenville as a total institution, a description that was used in a 2000
    Law Commission of Canada Report entitled
Restoring Dignity: Responding to
    Child Abuse in Canadian Institutions.
[3]
The appellants say that because the concept only came into being in 2000, there
    was no evidence that they ought to have known during the Class Period that they
    were running a total institution, and that they were placing the students at
    risk of harm as a result.

[59]

This point can be addressed briefly.

[60]

Contrary to the appellants argument, the trial judge did not conclude
    that there was systemic negligence
because
the appellants were running a
    total institution. Rather, this was a label used by Dr. Barnes to describe an
    institution that has certain features. Although she acknowledged that Grenville
    differed in certain respects from residential schools, Dr. Barnes offered the
    opinion that Grenville operated as a total institution because it had these
    features, which could lead to conditions of disconnection, degradation and
    powerlessness, thereby posing the risk of emotional harm. The important point
    made by Dr. Barnes was that children in a total institution are vulnerable to
    emotional harm by their caregivers because they are away from their parents and
    dependent on school administrators for all aspects of their care.

[61]

I see nothing wrong with the trial judges acceptance of the
    characterization of Grenville as a total institution. Nor is there merit to
    the assertion that because the term may not have been in use during the Class
    Period (there is in fact no evidence that this is the case
[4]
),
    the appellants could not have known they were operating a total institution
    and therefore harm was not foreseeable. The trial judge found that all four
    elements of total institutions described by Dr. Barnes existed at Grenville
    for boarding students. The conclusion that Grenville operated as a total institution
    did not lead directly to the conclusion that systemic negligence was
    established, nor did the trial judge reason that the appellants ought to have
    foreseen that they were running a total institution. Rather, as the trial judge
    stated, the risk that children in the care of total institutions may find
    themselves subject to disconnection, degradation or powerlessness formed part
    of her analysis in determining whether the boarding students during the Class Period
    were treated in a way that fell below the standard of care for students at that
    time: at para. 259.

(3)

Dr. Barnes Definition of Emotional Harm

[62]

In her cross-examination Dr. Barnes described emotional harm arising
    from spurning, terrorizing, isolating or exploiting as resulting from a
    repeated pattern of caregiver behaviour toward an individual child or an extreme
    incident. Counsel pointed out that this was different from her expert report,
    which referred to extreme incidents, in the plural. He asked Dr. Barnes to
    agree that there had to be repeated incidents for emotional harm to occur. She reiterated
    her evidence that a
single
extreme incident that encouraged a child to
    believe that he or she was worthless, flawed, unloved, unwanted, endangered or
    [of] value only in meeting needs of others could also constitute emotional abuse.

[63]

The appellants argue that the trial judge overlooked the fact that Dr.
    Barnes changed her evidence and did not apply her own definition of abuse,
    that required more than one extreme incident. The appellants assert that while
    there were isolated incidents of abusive discipline involving individual
    students, repeated incidents of abuse directed toward a single student, such as
    spurning, were required before there could be emotional harm. They say that
    the trial judge did not take into account the inconsistency in the experts own
    evidence and that, based on this misunderstanding about a single incident
    constituting abuse, the trial judge reasoned that abuse to one child was abuse
    to the Class.

[64]

I disagree. Whether or not there was an inconsistency with what she had
    written before, Dr. Barnes evidence was clear: a single extreme incident of
    spurning, terrorizing, isolating or exploiting could lead to emotional harm. And
    what Dr. Barnes did not say  nor did the trial judge reason in this way  was
    that a single incident involving one student being spurned, terrorized,
    isolated or exploited, constituted class-wide abuse. Rather, the trial judge
    repeatedly referred to the distinction between individual harm and risk to the Class
    from systemic practices. She carefully determined whether each of the impugned
    practices was systemic and resulted in systemic harm.

[65]

The appellants admitted that they owed a duty of care to the Class
    members to take reasonable steps, among other things, to protect them from
    actionable physical, psychological or emotional harm. The trial judge concluded
    that the appellants were systemically negligent in the operation of Grenville.
    She identified practices that she found were in breach of the standards of the
    day and were harmful. The trial judge considered whether, as the appellants
    argued at trial, the harms had been one-offs, that is isolated incidents of
    excessive discipline that were responsive to individual student conduct. She
    concluded instead that the practices, which were part of the culture of the
    school, aligned with its philosophy and embedded in its operational policies to
    enforce its norms, rules and expectations, were systemic. Grenville lacked
    policies or controls to ensure that students would not suffer harm. The harms
    flowed from the Class members exposure to discipline that was imposed
    arbitrarily or excessively, even if not all Class members were singled out for
    punishment. All of the Class members were subject to Grenvilles disciplinary
    practices during the Class Period. This is the basis on which the trial judge
    found that there was systemic negligence. She did not reason that harm to a
    single student constituted harm to the Class.

[66]

For these reasons, I would reject the appellants assertion that the
    trial judge failed to appreciate a contradiction in Dr. Barnes evidence, or
    that she concluded that systemic negligence was made out based on emotional
    abuse to individual Class members.

Issue Two: The Treatment of the Defence Evidence

[67]

The appellants submit that, in finding a class-wide breach of duty, the
    trial judge failed to wrestle with the appellants evidence, that Grenville was
    a harsh and strict religious environment, but not an abusive one. They say that
    the trial judge made a palpable and overriding error when she overlooked the
    defence evidence, and failed to assess the credibility of the defence
    witnesses.

[68]

The appellants also contend that the trial judge simply dismissed the defence
    evidence by relying on Dr. Barnes opinion about resiliency, when in fact the appellants
    witnesses described a fundamentally different school than what was described by
    the respondents witnesses. There was another explanation for differential
    effects on different students: that whatever abuse may have occurred did not
    rise to the level of actual actionable harm. The appellants assert that the trial
    judge made no findings against the appellants witnesses credibility or
    reliability, but she nonetheless ignored their evidence.

[69]

I disagree.

[70]

This ground of appeal seeks to impugn the trial judges findings of
    fact, findings that were made on the basis of her consideration of the evidence
    of all of the witnesses and the documentary evidence. The trial judge did not
    ignore the defence evidence, even though there was no section in her reasons
    dealing with the defence evidence that corresponded with her detailed review of
    the respondents lay witness evidence.

[71]

The trial judge made specific findings about the credibility and
    reliability of the evidence of the respondents witnesses because she was
    invited to do so  this was a major prong of the defence submissions at trial.
    As the appellants trial counsel submitted, the common issues, which were
    questions of mixed fact and law, were 99 percent fact. In their written
    arguments, the appellants conducted a detailed review of the evidence of the respondents
    lay witnesses, urging the trial judge to reject such evidence as exaggerated,
    biased and for other reasons. The trial judge reviewed these challenges in her
    reasons, and explained what evidence she accepted and why. By contrast, the
    respondents did not impugn the credibility and reliability of the appellants
    witnesses.

[72]

The trial judge did not, as alleged by the appellants, ignore the
    defence evidence in concluding that Grenvilles practices were abusive and
    harmful. She referred to evidence of individual defence witnesses throughout
    her reasons  including in her review of the credibility and reliability of the
    respondents witnesses: see, for example, paras. 44, 56, 58, 80, 89, 198, 203,
    231, 281 and 284.

[73]

The trial judge noted however, that much of the evidence of the appellants
    witnesses about practices at the school was consistent with that of the
    respondents witnesses. She stated that for each type of disciplinary
    response, multiple witnesses for both the plaintiffs and the defendants confirmed
    that these techniques were used during the Class Period: at para. 34, and
    that, although they characterized their own experiences at Grenville
    differently, [i]n many respects, the witnesses for all parties testified
    consistently about the operations of Grenville: at para. 31. The trial judge
    reasonably concluded, that the evidence of what life at Grenville was like was
    remarkably consistent among the plaintiff and defendant witnesses: at para.
    329.

[74]

The trial judge observed that [t]he areas of disagreement [between the lay
    witnesses for each side] fell into areas of individual experience, perception,
    atmosphere, and details of what was said and done to individual students: at
    para. 32. She rejected, as she was entitled to, the defence submission
    that because their individual witnesses did not find certain practices to be abusive,
    that they could not lead to emotional harm. The issue was not, as the
    appellants continue to assert on appeal, whether there was a unanimous
    perception of abuse by all Class members. The trial judge reasonably accepted
    that the differing responses described by former students could be explained by
    the expert evidence about the resiliency of individual students and the fact
    that different people can experience the same milieu in different ways: at paras.
    331-34, 336. She also reasonably accepted that the differential application of
    the impugned practices occurred as a result of some students figuring out how
    to avoid certain forms of discipline or having the benefit of additional
    protective factors relative to their familys contributions and status: at
    paras. 329, 337.

[75]

Ultimately, after considering all of the evidence, including the
    testimony of the defence witnesses, the trial judge made findings of fact about
    what went on at Grenville, and she determined that certain practices fell below
    the standard of care and constituted systemic negligence in relation to the
    entire Class.

[76]

Before concluding this part of the reasons, I must address a submission
    that permeated the appellants arguments on appeal: that this was an individual
    abuse trial writ large, and that the trial judge, in finding systemic
    negligence, simply ascribed the individual experiences described by the
    respondents witnesses to the entire Class.

[77]

There is nothing in the trial judges reasons to support this
    contention. To the contrary, the trial judges focus was on how the school was
    run, and the disciplinary and other practices that were used in its operation. Of
    necessity, the evidence of the witnesses focused on what they as individuals
    had experienced and observed. However, there is nothing to suggest that the
    trial judge took the individual experiences of some Class members and
    extrapolated them to the broader Class in order to find systemic negligence.

[78]

A focus of the defence submissions at trial was that, to the extent that
    there were excesses in discipline, such as excessive paddling and putting
    students on discipline, this occurred in response to individual
    transgressions. The defence asserted that the only systemic practice was the light
    sessions, but that this and other disciplinary practices, while humiliating to
    individual students, did not give rise to emotional or psychological harm to
    the Class. The trial judge made it clear throughout her reasons that she
    understood that she had to determine whether there was systemic negligence, and
    that she appreciated what this meant. She repeatedly emphasized that she had to
    determine whether each of the practices that was alleged to be in breach of the
    standard of care caused harm to the Class as a whole  in other words, whether
    they were systemic, or, as alleged by the appellants, one-offs that were
    distressing and potentially harmful only to those who were directly subjected
    to the practices: see, for example, paras. 9, 28, 308, 327, 338 and 341. The
    trial judge recognized that systemic negligence involved an assessment of how
    the school was run  its practices and the extent to which the practices
    created a risk of harm. Individual claims of harm and differences in impact on
    members of the Class were for the individual issues stage, if necessary: see
    paras. 28, 39, 276, 294, 308, 327 and 341.

Other Issues

[79]

In their factum the appellants briefly raised two other issues, which
    were not addressed in oral argument: that the trial judge erred in finding that
    the appellants breached their fiduciary duty to the Class, and in concluding
    that punitive damages were warranted.

[80]

It is sufficient to say that I see no reversible error in the trial
    judges conclusions on these issues.

[81]

The appellants admitted that they owed a fiduciary duty to their former
    students. After canvassing the relevant legal principles, the trial judge concluded
    on the basis of the record before her that the appellants had breached their
    fiduciary duty to the Class members by imposing [their] idiosyncratic
    lifestyle on them, beyond the limits of reasonable parental discipline. The
    trial judge focused specifically on Grenvilles failure to have in place any
    policies or checks on the enforcement of its disciplinary practices, resulting
    in arbitrary and abusive rule enforcement that placed students at risk of harm
    to their healthy development: at paras. 352-54. These conclusions were open to
    the trial judge on the evidence. The passages from the evidence pinpointed in
    the appellants factum do not undermine the trial judges conclusions in this
    regard.

[82]

In awarding punitive damages, the trial judge identified and applied the
    relevant principles from
Whiten
. The appellants submit only that the
    trial judges finding of a class-wide marked departure from the standard of
    care was tainted by the errors in her systemic negligence analysis. Having
    found no error in the systemic negligence analysis, I conclude that this ground
    of appeal cannot succeed.

F.

DISPOSITION

[83]

For these reasons I would dismiss the appeal, with costs to the
    respondents fixed at the amount agreed between the parties: $75,000, inclusive
    of disbursements and HST.

Released: October 26, 2021 R.G.J.

K. van Rensburg
    J.A.

I agree. R.G.
    Juriansz J.A.

I agree. Sossin
    J.A.





[1]

There were 1396 former boarding students in the class; 36
    opted out.



[2]

It was acknowledged at trial that the reference to Grenville
    Christian College in the admitted duty of care and fiduciary duty included
    each of the appellants.



[3]

This report, that was Exhibit 16 at trial, addresses
    institutions that were operated, funded or sponsored by government, including
    residential schools for Indigenous children, schools for the deaf and blind,
    training schools, long-term mental health care facilities and sanitoria.



[4]
The Law Commission of Canada report suggests that the term total institution
    was in use before the Class Period. See p. 22, quoting from a 1961 publication by
    E. Goffman.


