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COURT FILE NO: 9K-CV-154117

DATE: 20030626

ONTARIO SUPERIOR COURT OF JUSTICE

 

BETWEEN VICTORIA BOER

Plaintiff

Charles C. Mark for the Plaintiff

 

AND

 

BRIAN CAIRNS, STEVE BROWN, JOHN DIDUR,

AND WATCHT TOWER BIBLE AND TRACT SOCIETY

OF CANADA

Defendants

Colin P. Stevenson and Maureen L. Whelton for the Defendants

 

Heard September 9,10,11,12,13,16,17,18,19,20,23, and 24,2002

 

 

REASONS FOR JUDGEMENT

 

MOLLOY J.

 

Released June 26, 2003

 

(1) These reasons are organized under the following headings:

 

A. INTRODUCTION (para 2)

B BACKGROUND (paras 2-7)

C THE PLAINTIFF’S POSITION (paras 8-21)

D THE DEFENDANTS’ POSITION (paras 22-25)

E RULINGS ON EVIDENCE (paras 26-33)

F LIMITATION PERIOD AND LACHES (paras 34-35)

 

(i) Negligence Claim (paras 35-42)

(ii) Breach of Fiduciary Duty (paras 43-45)

 

G FACTUAL FINDINGS (paras 46-99)

 

(i) Key Facts to be determined (para 46)

(ii) Mathew 18: 15-18 (paras 47-65)

(iii) Instructions Not toReport to Child Welfare Authorities (paras 66-78)

(iv) Instructions Not to Seek Treatment (paras 79-87)

(v)December 29,989 Meeting ( paras 88-93)

(vi ) January 31, 1990 Meeting (paras 94-98)

vi) Conclusions on Key Focus (para 99)

 

 

H. FAILURE TO REPORT AND FORBIDDING MEDICAL TREATMENT (paras 100-104)

 

I. BREACH OF FIDUCIARY DUTY (paras 105-118)

 

J. NEGLIGENCE (paras 119-132)

(i) Postion of the Parties ( paras 120-121)

(ii) The American Approach: No Tort of Clergy Malpractice ( paras 122-130)

(iii) The Canadian Approach: Balancing Religious Freedom Against the Rights of Others ( paras 131-140)

(iv) Analysis: The December 29, 1989 Meeting

 

(a )Causation ( para 141)

(b) Duty of Care ( paras 142-157)

(c) Religious Freedoms of the Defendant and the Plaintiff’s Free Choice (paras 158-174)

(d) Standard of Care and Breach (paras 175-177)

(e) The Individual Defendants ( paras 178-179)

(f) The Watchtower Bible and Tract Society of Canada ( para 180 )

 

(v) Analysis: The January 31, 1990 Judicial Committee Meeting ( para 181)

(vi) Analysis: The Church’s Handling of Mr Palmer’s Abuse and Events After January 1990 ( para 182)

 

K. DAMAGES (paras 183-196)

L. JUDGEMENT AND COSTS (para 197)

 

A. Introduction

 

The plaintiff Victoria Boer seeks punitive damages and damges for negligence and breach of fiduciary duty against the Watchtower Bible and Tract Society of Canada ( the governing body of Jehovah’s Witnesses in Canada) and three elders of that church. Her claim stems from actions taken by the Jehovah’s Witnesses elders when, at the age of 19, she disclosed to them that she had been sexually molested by her father during her childhood. The plaintiff alleges that she was forced to confront her father with these allegations in the presence of two male elders of her congregation, an experience which she found to be traumatic. She said she was then required to go through essentially the same exercise of confrontation again, this time before three male elders, as part of a church disciplinary process against her father, thereby compounding the trauma. She further alleges that Watchtower failed to properly deal with the abuse by her father, failed to report it as required by law, and directed her not to seek medical and psychological treatment. The plaintiff testified that as a result of the defendant’s wrongdoing she has suffered extreme emotional harm which was for years untreated and which will require extensive therapy in the future.

 

B. Background

 

There is no material dispute as to the general background leading up to Wathctower’s involvement in this matter. The plaintiff was born in 1970 to Mary and Gower Palmer. She has an older brother and two younger siblings. Both parents were Jehovah’s Witnesses and all the children were raised in that faith, primarily as part of the congregation in Shelburne, Ontario.

 

[4] The plaintiff attended public school as a child but was not permitted to participate in after-school activities with children not of her faith. The family attended religious services several times a week. In addition, the plaintiff was required to spend considerable time in prayer, religious studies and pioneering (spreading the Jehovah’s Witness message to others, often by going door-to-door). She was cautioned against falling into “worldly ways”. She was taught to accept a rigid heirarchy of obedience; children must obey their parents; wives must obey their husbands; members of the congregation must obey the governing elders; the elders must obey the overall governing body, Watchtower. Independent thought was not permitted. Higher education was discouraged, particularly for girls. It was in mnay ways a closed and isolated society. Even though the members of the congregation lived, worked and attended school in the general community, they had little social interaction outside their faith.

 

[5] The plaintiff was sexually molested by her father from about the age of 11 or 12 untill she was 15. The abuse was serious, although it stopped short of actual intercourse. When the plaintiff was about 15, she read a religious article about masturbation and realized for the first time the nature of what had ben happening with her father and that it was wrong. She spoke to her mother about it. Mrs. Palmer told her daughter she had suspected something like this but had been afraid to raise it. She counseled her daughter to be more modest in her dress and not to wear pyjamas around her father. She also confronted her husband with the plaintiff’s disclosure and he promised to stop the offensive conduct. The matter was not discussed outside the family at that time. Mr. Palmer privately apologized to the plaintiff for his conduct, while at the same time telling her that after all, she had ‘enjoyed it too.” After that, there were no further incidents of overt abuse, but more subtle things still happened, which Mr. Palmer passed off as accidents or jokes.

 

[6] In 1989, when the plaintiff was 19, she left home to take a job as a live-in nanny in Toronto. She continued her adherence to the Jehovah’s Witness faith, joining a Toronto congregation. In the fall of 1989, the plainitff began to experience considerable anxiety arising from the sexual abuse she had suffered years earlier. She had flashbacks and recurring dreams about her father. She was fearful when caring for the children in her charge and was worried that she might be accused of doing something wrong. The plaintiff confided in a friend at the Totonto Jehovah’s Witness congregation about these problems. The friend, Chris, advised her that she had a responsibility to report her father’s conduct to the church elders. Chris said there were two reasons for this. First, the past abuse was affecting the plaintiff and he felt she needed spiritual help to deal with it. Second, Chris pointed out that the plaintiff was aware of a sinner in the Shelburne congregation ( her father) but the congregation was unaware of the sinner being in their midst. Chris said that if Armegeddon came and the plaintiff had not taken steps to bring her father’s sin into the open, she could be held responsible for having jeopardized the salvation of the entire Shelburne congregation. At Chris’ suggestion, the plaintiff contacted Sheldon Longworth, an elder in the Toronto congregation, and reported the matter to him.

 

[7] The Church’s response to this report is the subject matter of this lawsuit. Many of the crucial facts from this time on are in dispute.

 

 

C. The Plaintiff’s Position

 

[8] The plaintiff, Vicky Boer, had several conversations with Mr. Longworth. He consulted with ‘head office’ in Toronto to determine the appropriate steps to be taken. For one of his interviews with her, which took place in her room at the home of her employers, another male elder from Toronto was also present. Mrs. Boer testified that Mr. Longworth was sympathetic and kind, but that he told her that she must invoke Matt. 18: 15-18. This would require confronting her father in front of elders from Shelburne and giving him a chance to repent. She found this prospect terrifiying and told Mr. Longworth so. However, when he insisted this was the proper course of action, she felt she had no choice but to obey the elders.

 

[9] Ms. Boer testified she asked Mr. Longworth if she could get her mother to talk to her father about it, rather than having to do it herself, but he said this was not possible. However, she also testified that she did in fact telephone her mother and asked her to tell her father to report himself to the Shelburne elders. Her evidence on this point was somewhat confusing.

 

[10] Ms. Boer also testified that she discussed her distress with the situation with a long-time childhood friend, Jonathan Mott-Trille. His family were members of the Shelburne Jehovah’s Witness congregation. She said she was crying and hysterical as she told her friend Jonathon about having to confront and accuse her father. Jonathan told her he thought the confronation was wrong and promised he would discuss the matter with his father Frank Mott-Trille, who was a lawyer and also an elder in the Shelbourne congregation.

 

[11] The next day, Ms. Boer met with Jonathan and Frank Mott-Trille at their home in Toronto. Frank Mott-Trille told her there was no requirement that she confront her father. He also advised her that she should report the abuse to the Children’s Aid Society (“ C. A. S.” ) and recommended that she see a psychiatrist. Frank Mott-Trille actually arranged an appointment for Ms. Boer with Dr. Kaplan, a psychiatrist recommended to him by his daughter ( who is herself a doctor).

 

[12] In the meantime, Ms. Boer received a telephone call from her father stating that a meeting had been arranged for December 29, 1989 at the Palmer family home in Shelburne and that two Shelburne elders , Steve Brown and Brian Cairns would be attending. Ms. Boer testified at trial that she went to the meeting because Mr. Longworth had directed that she must attend and she had no choice but to obey the elders.

 

[13] Ms. Boer described the meeting as being very painful for her. It was conducted in the Palmer’s kitchen, with the plainitff, her parents, and the two elders in attendance. The plaintiff was asked to describe in detail what the plaintiff had done to her. She said she objected to doing so but was told it was necessary. After she recounted the details, her mother said this had all been dealt with in the family years before and that her father had apologized. Ms. Boer testified that toward the end of the meeting she told Mr. Cairns and Mr. Brown that Frank Mott-Trille had advised her to report to the Children’s Aid Society and had arranged for her to meet with a psychiatrist. She said Mr. Cairns and Mr. Brown told her Frank Mott-Trille was “acting worldly” and that she should not listen to him. Further, they told her that if she went to the C. A. S. the family would be investigated, her father could lose his job, and her mother would be destitute. She said that her mother was crying and telling her to listen to what the elders were saying and that she should listen to them or her father could go to jail. Finally, according to Ms. Boer, Mr. Cairns and Mr. Brown indicated that Mr. Palmer had demonstrated repentance and improved spirituality by being more active in the faith and spending time ‘in service” (spreading the word about Jehovah’s Witness to others outside the faith.)

 

[14] Ms. Boer did not contact the C.A.S. and did not keep the appointment with the psychiatrist which Frank Mott-Trille had arranged for her. She testified at trial that she knew she needed help but did not seek it out because she had been told not to by the elders.

 

[15] At the end of January, Ms. Boer was contacted again and asked to attend a further meeting at her parents’ home. Although she did not realize it at the time, the purpose of the meeting was to conduct a Judicial Committee (an investigation by the elders) in respect of Mr. Palmer’s wrongdoing and to determine what, if any, sanctions were appropriate. According to Ms. Boer, this meeting was also conducted in the kitchen with all the same people as the first meeting plus an additional elder, Dave Walker, who was from a congregation outside Shelburne. She was asked ro repeat her story because Mr. Walker had not heard it before. She was questioned closely about the details so the elders could determine the level of sin Mr. Palmer had committed. She testified at trial that her father started to deny some of the allegations and to say that she was exaggerating. She felt she was under attack and was so distraught that she had what she described to be a panic attack in which everything appeared to be “swimming” and she “nearly passed out.”

 

[16] After the Judicial Committee meeting Ms. Boer returned to Toronto to her live-in nanny job. However, she was having such a difficult time emotionally that she resigned. Unemployed, and without housing or any source of income, she eventually returned to live with her parents in Shelburne. At this time, there was a lot of in-fighting among the members of the congregation and between various of the elders. Ms. Boer felt responsible for the trouble. Rumours leaked out about her having accused her father of sexual abuse. However, since no sanctions appeared to have been imposed on Mr. Palmer, the plaintiff believed there was a perception in the community that she had fabricated these accusations. She felt ostracised by the community. She became bulimic and developed ulcers.

 

[17] In July, 1991 the plaintiff decided to move to Moose Jaw, Saskatchewan. She had hoped to reconcile with a former boyfriend who lived there. However, after arriving in Moose Jaw, she discovered that he was in another relationship. In September, the plaintiff met Scott Boer and by mid October, they were engaged to be married. He was aware of the psychological problems she was having and persuaded her to attend counseling. She attended five group sessions, but stopped going because she said she found it too difficult to listen to other women recounting the abuse they had suffered.

 

[18] Vicky and Scot Boer were married in May 1992. There was considerable emotional upheaval surrounding the wedding. Scott Boer is not a member of the Jehovah’s Witness faith, which was problematic for Vicky’s friends and family, particularly for Mrs. Palmer who was very devoted to her religion. Marriage outside the faith is frowned upon. Originally, the wedding was booked for the Jehovah’s Witness church in Shelburne. However, Mrs. Palmer cancelled all the arrangements without warning. There was some question as to whether the Palmers would even attend. The wedding did proceed in Shelburne, but before a Rabbi and in the Legion hall. Although the plaintiff’s parents attended, very few other members of the congregation did.

 

[19] Vicky and Scott Boer had three children soon after their marriage, the third being born in 1995. Ms. Boer continued to have emotional difficulty. The couple had marital problems as a result. Scott Boer, a member of the Canadian Armed Forces, was often away from home for extended periods of time. Ms. Boer, alone at home with three small children and sometimes in communities where she knew very few people, had a difficult time. She also had little or no contact with her former friends in the congregation. Scott and Vicky Boer attended counseling together for five sessions in 1995. The family then moved to Quebec City where Ms. Boer had difficulty finding a therapist who spoke English. In January 2000 Scott Boer was posted to New Brunswicke, where the family still lives. After an initial waiting period, Ms. Boer is again seeing a psychiatrist on a regular basis.

 

[20] After her marriage, Ms. Boer’s relationship with her mother was very strained as Mrs. Palmer blamed her daughter for exposing her father’s sin to the community. Ms. Boer left the Jehovah’s Witness faith in 1995 or 1996, which also was a source of strain between her and her mother. Mrs. Palmer began to say that the abuse had never happened. Even when she was dying of cancer, Mrs. Palmer refused to see her daughter. She died in 1998 without any reconciliation with her daughter Vicky.

 

[21] On August 25, 1998, Vicky Boer commenced this action. She alleges that the individual defendants Brian Cairns and Steve Brown acted negligently and in breach of fiduciary duty owed to her in forcing her to go through the traumatic experience of recounting particulars of her father’s sexual abuse in the presence of her father on two occasions. She also alleges that Mssrs. Cairns and Brown were concerned only for the reputation of the congregation and for her father. They attempted to “cover up” the abuse by trying to keep it inside the community, by telling her not to get medical help for herself, and by telling her not to report it to the secular authorities. This deepened the trauma which the plaintiff had experienced and prevented her from starting a healing process until many years later. The defendant John Didur was a senior elder at the Watchtower head office and was involved in an advisory capacity in respect of the steps taken by Sheldon Longworth and by Mssrs. Cairns and Brown. The plaintiff alleges that Mr. Didur and Watch Tower instructed and supported the other Jehovah’s Witness elders in their handling of this matter and are equally responsible for the damages she has sustained.

 

D. The Defendant’s Position

 

[22] The defendants deny having caused any harm to the plaintiff. They point out that it was the plaintiff that brought the matter to the Jehovah’s Witness elders and that she was an adult when she did so. They allege that the extent of Sheldon Longworth’s involvement was to find out from the plaintiff the nature of the complaint and then to tell her that it should be dealt with through the Shelburne congregation elders. They deny that Matthew 18: 15-18 has any application to this situation and deny having told the plaintiff she must comply with Matthew 18.

 

[23] The issue before the Shelburne congregation was a spiritual one: specifically a serious sin committed by a member of the congregation and the appropriate sanction, if any, for that sin. The defendants take the position that the manner in which the elders dealt with Mr. Palmer is a question of religious faith and is not reviewable by this court. They allege that Ms. Boer was present at the two meetings to ensure that the elders had a full picture of what had occurred and not just her father’s version. Mr. Brown and Mr. Cairns testified that they did not know ahead of time what would be discussed at the first meeting. They further testified that the second meeting was a Juducial Committee, which was required because of the serious nature of the sin involved. They stated the plaintiff was present during all parts of the first meeting but the family members were interviewed separately for the Judicial Committee meeting. They deny the plaintiff was required in that session to retell her story in front of her father.

 

[24] The defendants deny telling the plaintiff not to report to C.A.S. and deny telling her not to get medical help. On the contrary, they say they advised the plaintiff to get medical help and understood she would be seing a psychiatrist recommended by Frank Mott-Trille. Further, they required Mr. Palmer to report the abuse to his family doctor and to the C.A.S. and followed up with C.A.S. to ensure this was done. The defendants deny having covered up the abuse, although they did try to maintain confidentiality for the protection of the plaintiff and other members of her family. The defendants deny the plaintiff suffered emotional harm as a result of the two meetings in which she participated.

 

[25] The defendants take the position that any emotional harm sustained by the plaintiff flows from the sexual abuse by her father and other difficult circumstances in her life, such as her mother’s conduct and lack of support and difficulties in her marriage. The defendants also submit that the plaintiff’s delay in bringing this action is an absolute bar to her obtaining any recovery.

 

E. Rulings of Evidence

 

[26] During the course of the trial, the plaintiff sought leave to present evidence from two witnesses about certain characteristics or practices of the Jehovah’s Witnesses organization in situations similar to this one. I ruled such evidence to be inadmissable, with reasons to follow.

 

[27] The first witness, Professor James Penton, is an historian and the author of a book entitled Apocalypse Delayed . Mr. Mark, on behalf of the plaintiff, intended to elicit evidence from Mr. Penton with respect to his conclusions about various characteristics of Jehovah’s Witnesses, the way women are treated within that faith and the functioning of Judicial Committees. Professor Penton’s evidence would be based on his research and would constitute opinion. He does not have first-hand evidence. However, Mr Mark did not deliver notice of his intention to call an expert on this topic and did not serve an expert report on the defense as required under the Evidence Act , R.S.O 1990, c E23. That alone is fatal to the plaintiff’s request to call this evidence. The defence would have been caught by surprise with no opportunity to prepare, nor to call its own evidence to rebut the evidence of Mr. Penton.

 

[28] In any event, I am by no means satisfied that expert evidence of this nature would have been admissable in respect of these matters. It seems to me that I am in a position to determine the relevant facts to the particular matters before me without the assistance of an expert on these matters.

 

[29] The second witness proposed by the plaintiff is Barbara Anderson, who was a member of the Jehovah’s Witnesses in New York from 1954 until her recent disfellowship (ejection from the faith). The plaintiff proposed to elicit evidence from Ms. Anderson as to her knowledge of how sexual abuse of children is dealt with within that religion and of cover-ups of abuse within that society. Most of Ms. Anderson’s proposed testimony would be hearsay. The plaintiff argued it would be admissable as similar fact evidence that the actions of the defendants in this case was part of a design, rather than negligence.

 

[30] The general test for the admissibility of similar fact evidence in a civil trial is derived from Mood Music Publishing Co. v DeWolf Ltd .; [1976] Ch 19, 1 ALL E.R. 763 (C.A.) In that case, Lord Denning stated, at page 127 (Ch)

 

…in civil cases the court will admit evidence of similar facts if it is logically probative, that is if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it.

 

[31] The proposed evidence from Ms. Anderson fails this test on every front. First, it is not logically probative of any issue before me. Whatever may have been Ms. Anderson’s personal experience with the Jehovah’s Witness faith, and whatever information she may have gleaned about how child abuse cases were dealt with elsewhere, she has no evidence whatsoever about the Toronto or Shelburne congregations or any of the individuals in this case. Further, even her information about Watch Tower generally relates to that organization in the United States. There is nothing about her evidence that would assist in the very specific findings of fact I am required to make about what happened in the case before me.

 

[32] Secondly, the defendants did not have a fair opportunity to deal with this proposed evidence as they had no notice of it until the first day of the trial.

 

[33] Thirdly, the proposed evidence is oppressive and unfair. Even if the evidence could be seen as relevant (which it is not) it would only be so if it were true. In order to establish the truth of it, a trial within a trial would be required. There would be no effective way for the defendants to mount a defense to the matters alleged by Ms. Anderson, and the admission of such evidence would therefore be unfair to them.

 

F. LIMITATION PERIOD AND LACHES

 

[34] The actions of the defendants which the plaintiff alleges to have caused her harm occurred in late 1989 and in 1990. This action was commenced in August 1998, more than eight years later. The defendants submit that the negligence claim is statute-barred because because it was not commenced within the six-year limitation period and that the plaintiff’s delay in commencing this action is also a bar to the equitable claim based on breach of fiduciary duty. I reject the defendant’s position on both points.

 

(i) Negligence Claim

 

[35] In M. (K.) v M. (H) (1992) 96 D.L.R. (4 th ) 289 (S.C.C.) the plaintiff sued her father for incest which had occurred more than ten years earlier, basing her claim in both tort and breach of fiduciary duty. The Supreme Court of Canada applied the discoverability ruled and held that the limitation period did not begin to run untill the victim had a substantial awareness of the harm she had sustained and of the casuative connection between the abuse and her symptoms; pages 305-306 and 314-315. Further, based on the scientific evidence at trial, the Court held that in incest cases there is a presumption that “victims only discover the necessary connection between their injuries and the wrong done to them (thus discovering their cause of action) during some form of psychotherapy”, page 314.

 

 

[36] I agree with the submission of counsel for the defendant that this presumptive rule applied by the Supreme Court in M. (K.) v M. (H) does not apply here. However, the general prinicples applied by the court as to the discoverability rule and its rationale are directly applicable. The underlying rationale for the discoverability rule is that a plaintiff ought not to be depreived of a cause of action before she is aware, or could reasonably have been aware, that she has one; Central Trust v Rafuse , (1986) 2 S.C.R. 147; Peizeiro v Haberman , (1997) 3 S.C.R. 549. In determining the plaintiff’s level of awareness, it is relevant to consider whether she could reasonably have known both that the conduct of the defendant was wrong and that there was a casual link between the wrong conduct and her psychological injury.

 

[37] It is clear the plaintiff knew her father’s conduct was wrong by the time she had reached the age of majority. However, I conclude from the evidence at trial that that she had not realized the connection between that abuse and her own psychological state until years later when she began therapy. In particluar, it was not untill 1995 when Ms. Boer and her husband underwent marital counseling with Susan Frickland, a social worker in Moose Jaw, that Ms. Boer substantially appreciated the connection between the childhood issue and the anxiety and behavior she was experiencing as an adult. Even then, the potential causual connection between the behavior of the church elders and the plaintiff’s emotional suffering was not apparent to the plaintiff. Although the plaintiff was unhapy about many aspects of her faith and how she had been treated by the elders, she did not connect that unhappiness to any problems she was having until after she attended a counseling session with Russell Scott in October 1997. She had gone to see Mr. Scott because she felt emotionally overwhelmed raising her three small children in Quebec City while her husband was away on military duties. She told him of difficulties she was having in her relationship with her parents, which led to her relating some of the problems she experienced growing up as a Jehovah’s Witness. Ms. Boer also disclosed to Mr. Scott that she had been sexually abused by her father and told him about the pressure from the elders to confront her father about this in their presence. Mr. Scott told the plaintiff that this confrontation had the potential to be emotionally damaging and also suggested that she do some research of her own on the importance of being raised in a “cult environment.”

 

[38] I find as a fact that it was only after this session with Mr. Scott and the follow-up research she undertook on her own through the Internet that Ms. Boer came to any understanding that the actions of the elders in 1989 and 1990 could be a source of her psychological problems. This action was commenced in 1998, which is within one year of the plaintiff becoming aware of the possiblility of the cause of action against thse defendants, and therefore is not caught by this limitation period.

 

[39] In M. (K.) v M. (H ), supra, the Supreme Court of Canada held that it is appropriate to consider the doctrine of fraudulent concealment in determining the applicability of a limitation period, even where fraudlent concealment has not been specifically pleaded. The doctrine applies to both common law and equitable causes of action and operates to prevent the application of a limitation period where there is conduct by the defendant that has prevented the plaintiff from being aware of the cause of action. The term “fraudulent” in this context is to be interpreted broadly and “is not confined to the traditional parameters of the common law action” for fraud. M. (K.) v M. (H) at page 320. The Supreme Court in M. (K.) v M. (H ) at page 320 adopted the following definition of the factual basis for fraudulent concealment from 8 Hals.,4 th ed., p 413 para 919:

 

It is not necessary, in order to constitute fraudulent concealment of a right of action, that there should be active concealment of the right of action after it has arisen; the fraudulent concealment may arise from the manner in which the act which gives rise to the right of action is performed …(Emphasis added.)

 

In order to constitute such a fraudulent concealment as would, in equity, take a case out of the effect of a statute of limitation, it was not enough that there should be merely a tortious act unkown to the injured party, or enjoyment of property without title, while the rightful owner was ignorant of his right; there had to be some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts .(Emphasis added.)

 

 

 

[40] In M. (K.) v M. (H) , the Supreme Court of Canada ruled that incest falls within the second category of fraudulent concealment. LaForest J, writing for the majority, noted at p. 320, that “The fact that the abuser is a trusted family authority figure in and of itself masks the wrongfulness of the conduct in the child’s eyes, thus fraudulently concealing her cause of action.” Further, at p. 321 he held that “incest is an abuse of a confidential position.” The Court went on to state that the underlying premise supporting the application of the doctrine of fraudulent concealment in cases such as these is that the courts will not allow a limitation period to act as an instrument of injustice.

 

[41] In considering whether the discoverability rule applies unfairly to the defendant in the case before me, it is relevant to take into account the doctrine of fraudulent concealment. As against the defendants before the court, this is not an incest case. However, the claim does involve the alleged abuse of a confidential position. Further, the fundamental precepts of the Jehovah’s Witness faith include obedience and deference to the wisdom of the elders. A devout Jehovah’s Witness in the position of the plaintiff at 19 years of age would be particularly vulnerable to the power of the elders, having been raised her entire life to defer to them. Her religious upbringing would not permit her to question the authority of the elders, much less to realize that she might have a cause of action against them. In these circumstances it would be unjust to the plaintiff in 1989 and 1990 as having any appreciation of wrongdoing that could amount to negligence or breach of fiduciary duty on the part of the elders. That understanding only came to the plaintiff after she was no longer part of the community and subject to their control. Given the social isolation and dependence of the plaintiff at the time of the acts giving rise to the cause of action, which isolation and dependence was fostered by Watch Tower and its elders, it would be unjust to impose a limitation period commencing in 1990 without the mitigating effect of the discoverability rule.

 

[42] Accordingly, I conclude that the discoverability rule should be applied in this case. As such the action was commenced within the six-year limitation period, that period not having started to run untill October 1997. Alternatively, at the very earliest, the period started to run in 1995 when the plaintiff first realized that her emotional difficulties stemmed from earlier abuse by her father and when, arguably, she was sufficiently distanced from the Church to connect the conduct of the elders to some of her problems.

 

(ii) Breach of Fiduciary Duty

 

[43] There is no limitation period for breach of fiduciary duty, whether explicitly or by analogy. M. (K.) v M. (H) , at page 328-333. However, since this is an equitable claim, it is subject to the equitable defense of laches . Mere delay by a plaintiff in commencing an action is not sufficient to support a defense of laches . In addition, the plaintiff’s delay must either: (1) constitiute acquiescence in the defendant’s conduct (2) result in circumstances that make the prosecution of the action unreasonable, as for example where the defendants have unreasonably altered their position as a result of the delay or are otherwise prejudiced in the defence of the action as part of the delay.

 

[44] The defendants submit that the plaintiff’s delay amounts to acquiescence. I disagree. The plaintiff cannot be taken to have acquiesced in wrongdoing unless she had, or reasonably should have had, knowledge of the wrongfulness of the acts and their actionability. As noted by LaForest J. in M. (K.) v M. (H) , at p 336-338, there is some overlaps between the concepts of knowledge as part of acquiescence and the application fo the discoverability rule in tort. However, the analysis is not identical. In the case before me, Ms. Boer cannot be taken taken to have acquiesced in wrongdoing by the elders (which allegedly occurred in 1989 and 1990) until she reasonably should have known it was in fact wrongdoing and that she had a right of action (which occurred in 1997) In that context, it is not equitable to consider her as having acquiesced in any wrongdoing by the defendants. That branch of the laches doctrine does not , therefore, provide a defence to these defendants.

 

[45] There was no evidence of any change in postion by the defendants as a result of the plaintiff’s delay. The individual defendants involved with the plaintiff confirmed their actions in correspondence with the Watch Tower head office and that corresponence was preserved. Sheldon Longworth kept handwritten notes of his discussion with the plaintiff, and those also were preserved. To the extent that memories had dimmed, the documentary record was available to refresh them. It seemed to me from hearing the evidence of the defence witnesses that there was little, if any, prejudice to the defendants as a result of the delay in commencing the action. There was certainly not the sort of prejudice to support a conclusion that it would be inequitable for the plaintiff’s action to proceed. On the contrary. The unfairness of the plaintiff in dismissing her action because of delay would be far greater than any unfairness to the defendants in having the action proceed.

 

G. FACTUAL FINDINGS

 

(i) Key Facts to Be Determined

 

[46] There were many factual disputes in the evidence at trial. Some of them are not necessary for me to resolve in order to decide this case, particularly those relating to the internal wrangling and power struggle among the elders of the Shelburne congregation. Other disputes are central to the plaintiff’s claim and crucial to her case. I consider the following disputed facts to be core issues requiring resolution:

 

(a) Did Sheldon Longworth instruct the plaintiff that she was required to confront her father pursuant to Matthew 18:15-18?

 

(b) If so, was the first meeting at the Palmer home with Mr. Cairns and Mr. Brown an application of Matthew 18:15-18?

 

(c) Did the defendants instruct the plaintiff not to see a psychiatrist or get medical help for herself?

 

(d) Did the defendants instruct the plaintiffnot to report her father’s abuse to the Children’s Aid Society?

 

(e) Was the second meeting at the Palmer home an application of Matthew 18:15-18 and did it otherwise involve a confrontation between the plaintiff and her father?

 

(ii) Matthew 18:15-18

 

[47] Much was said about Matthew 18:15-18 during the course of the trial before me, but a text of those verses was never put before me. Mr. Longworth testified that applying this principle is a three-part process. If you have a problem with someone, you should go first to that person directly and attempt to resolve it. If that is not successful, you should take someone with you to be a witness. If both those steps are unsuccessful, the third step is to take the problem to the church elders. Set out below is the text of the applicable verses from the King James Version of the Bible. Although I am uncertain as to whether this version is the one used by the Jehovah’s Witnesses, it appears to reflect the synopsis given by Mr. Longworth.

 

 

Matthew 18:15

Morover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother.

 

Matthew 18:16

But if he will not hear [thee then] take with thee one or two more, that in the mouth of two or three witnesses every word may be established.

 

Matthew 18:17

And if he shall neglect to hear them, tell [it]unto the church, but if he neglect to hear the church, let him be unto thee an an heathen man and a publican.

 

Matthew 18:18

Verily I say unto you, Whatsoever ye shall bind on earth shall be bound in heaven; and whatsoever ye shall loose on earth shall be loosed in heaven.

 

[48] Vicky Boer testified that Sheldon Longworth told her Matthew 18: 15-18 applied to her situation and required her to confront her father about his wrongdoing. She stated she was extremely upset about this prospect and she went to discuss it with her friend Jonathan Mott-Trille. Her discussions with Jonathan Mott-Trille would certainly have been some time around the middle of December 1989, but neither she nor Jonathan Mott-Trille kept a record of the date and neither can pinpoint the date from memory. Jonathan Mott-Trille does, however, have an independent recollection of his discussion with the plaintiff. I found him to be an honest and unbiased witness who tried his best to relate the facts accurately. I have no hesitance accepting his evidence that Vicki Boer was extremely distraught and that the focus of her emotional distress at the time was that she was being told she had to invoke Matthew 18 and confront her father about his sexual abuse.

 

[49] Jonathan Mott-Trille further testified that he had Vicki Boer wait while he went to discuss the problem with his father, Frank Mott-Trille, on a no-name basis. He said he asked his father if it was necessary for a victim of sexual abuse to confront her abuser in front of male elders. It makes sense that Jonathan would consult his father on this point as Frank Mott-Trille was both a lawyer and an elder in the Shelburne congregation, and therefore likely to be knowledgeable about the process. Jonathan’s evidence on this point is corroborated by his father Frank Mott -Trille. Jonathan told the plaintiff that his father said there was no requirement to confront the abuser and had offered his further assistance if required.

 

[50] The plaintiff returned the next evening to speak directly witrh Frank Mott-Trille. Both she and Frank Mott-Trille testified that she advised him that she was instructed by Sheldon Longworth to apply Matthew 18. They also testified that Mr. Mott-Trille told her that this was a misapplication of the Scripture and that she was not required to confront her father. Mr. Mott-Trille advised her to report the matter to the Children's Aid Society amd recommended she see a psychiatrist for counseling. Mr. Mott-Trille with the assistance of his son and his daughter Rachel, who is a doctor, arranged an appointment for the plaintiff with a psychiatrist, Dr. Kaplar. There is no evidence as to the specific date of that appointment, although Mr. Mott-Trille's evidence was that it was made on an urgent basis and would have beeen within a few days of his meeting with the plaintiff.

 

[51] Both Jonathan Mott-Trille and Frank Mott -Trille described Vicky Boer as extremely upset and possily suicidal. Vicki Boer also said she was extremely upset and hysterical when she met with them. I trust Jonathan Mott-Trille’s perception and find his recollection to be reliable. I accept that Vicki Boer was upset, hysterical and potentially suicidal when she first went to talk to her friend Jonathan. However, Jonathan described the plaintiff as having calmed down somewhat after being advised that there was no requirement in the Scripture for a confrontation in this situation. That makes sense. The plaintiff went there looking for help. She was treated sympathetically, given good advice, and told there was no need to have a confrontation with her father. An appointment was set up for her to start a process of counseling. One would expect that this combination of kindness and concrete good advice would have had the calming effect described by Jonathan. I do not find the perceptions of Frank Mott-Trille to be as reliable. His evidence was at times exaggerated. I treat it with caution as it appeared to me to be coloured somewhat by Mr Mott-Trille’s hostility toward the elders and the Jehovah’s Witness orgnaization. If Mr. Mott-Trille really believed Ms. Boer to be suicidal at the time she left his home after their second meeting, I would not have expected him ato suggest to her that she go by herself to report the matter to C.A.S. Further, when the plaintiff failed to attend for her appointment with Dr. Kaplar, I would have expected Mr Mott-Trille to take more urgent steps to follow up if he had perceived her mentral distress at the time to be as acute as he described it in his evidence at trial.

 

[52] I therefore conclude that Ms. Boer was highly upset at the time and that the primary and immediate source of her distress was the prospect of having to confront her father under Matthew 18. She would not have simply concluded on her own that Matthew 18 applied. She must have been told that by somebody. The person she was relying upon for advice at the time was Sheldon Longworth. He is the logical source of the information.

 

[53] Sheldon Longworth testified at trial. While he certainly remembered the incident with Vicky Boer, he was no longer able to recall the specific details of precisely what was said in each of his discussions with her and with his advisers at the Watch Tower head office. However, the notes he kept at the time are available and are of considerable assistance. Those notes though somewhat sketchy, were made contemporaneously and I find them to be highly reliable. Also I find Mr. Longworth to be an honest and impartial witness. When he could not remember a detail he said so. When he testified as to a particular event which he did recall, I accept his evidence.

 

[54] Mr. Longworth’s notes indicate that he first spoke with the plaintiff on December 11, 1989 when she called him for advice. He got some further information from the plaintiff, consulted with head office on December 12 and read a 1988 Watch Tower directive on how to deal with child abuse in order to inform himself. On the evening of December 12, he met with the plaintiff at his apartment and she provided him with the further particulars he requesteed, including the fact that there were two young children still in the home. It would appear from Mr. Longworth's notes that no advice was given to the plaintiff on this occasion, but that he promised her he would look into it and get back to her quickly.

 

[55] On December 13, 1989 Mr. Longworth spoke with John Didur at head office and got some advice as to how to deal with the matter, which he passed on to the plaintiff later that same evening. Mr. Longworth testified at trial that the main thrust of the advice he gave the plaintiff after December 12 was that this matter should be dealt with by the elders in Shelburne and that her father should contact them to ensure this happened. I accept his evidence on this point as being credible, supported by his notes, and consistent with how the matter proceeded thereafter.

 

[56] However, it is also apparent from his testimony and from his notes that he did discuss Matthew 18 with advisers from head office and that he did tell the plaintiff to apply Matthew 18. Mr. Longworth’s notes on December 13 indicate that Mr. Didur told him that Vicki should “apply Mattt 18 to go to her father and tell him to go to the elders and straighted [sic] out”. He further noted that he told this to Vicki and suggested she call her father and give him a week to go to the elders or Vicki would go to them” And that Vicky said she would do this.

 

[57] The next note Mr. Longworth made was on December 15 when he wrote that Vicki had approached him and said she was afraid of her father and that it was “too hard” for her to talk to him directly. He told her he would look into it and get back to her. His notes indicate that he then discussed this with Mr. Kutschke (another elder at head office) who advised that “she would need to apply Matthew 18 and call her father”. His notes of December 16 further state that later that evening he spoke to Vicki “and tried to help her see necessity of applying Matthew 18 which meant going to her father”. At that time Vicki said she would consider it but that maybe she would call her mother instead. His final note that day in response to this alternate suggestion was “So that is how I left it”

 

 

[58] Mr. Longworth testified that the plaintiff was very upset about the situation and about confronting her father under Matthew 18. He said she was crying while talking about these matters. However he did not perceive her level of distress to be as extreme as was described by Jonathan Mott-Trille. The likely explanation for this minor descrepancy is that the plaintiff simply did not display the same degree of distress before Mr. Longworth. She was a close friend of Jonathan’s and felt more at liberty to break down in front of him than she would do in front of Mr. Longworth who was a virtual stranger to her.

 

[59] On December 17 the plaintiff called Mr. Longworth and advised him that he had called her mother as “she still felt she couldn’t call her father” and that her morer would advise her father to go to the elders in Shelburne. Obviously this did occurr as Mr. Palmer called Mr. Longworth the next day and said he would cooperate fully. After further consultation with John Didur, Mr. Longworth told Mr. Palmer to go to the elders of his congregation to straighten the matter out.

 

[60] On December 18, 1989 Mr. Longworth and Mr. Novak visited the plaintiff at the home where she was working as a nanny. Mr. Longworth’s note from that day states:

 

We commended her for her coming forward for help and for talking to us to what must have been a very hard thing to do. We encouraged her to speak up if she is required to talk to the elders in Shelburne and tell them the facts . (Emphasis added)

 

[61] Thereafter the Toronto elders had no further involvement, having left the matter to the Shelburne elders to handle. The last note made by Mr. Longworth is headed “Dec 21/89 phone call from Vicki about 6:00 pm” It then states:

 

Went to Bro. Mott-Trille as she is very close to him. Her father is saying he can’t remember very much what he done to her. Vickie said she was having a hard job handling this and felt her family father and mother was upset at her bringing this up.

 

Somewhat confusingly, this notation is followed immediately by a note which states “Dec 18/89 advised Fred [Novak] as to above 7:30 pm”. Obviously Mr. Novak could not have been advised on the 18th of something which occurred on the 21 st . One of the dates is an error, but it is unclear whether they both occurred on December 18th or on the 21st.

 

[62] In my view much of the confusion surrounding the Matthew 18 issue stems from the fact that it does not actually apply to a situation such as this one. I accept the evidence of John Didur that it is not now the policy of the Jehovah's Witness to require a victim of abuse to proceed through the steps envisioned in verse 15-18 of Matthew 18, nor was that the policy in 1989. He explained that Matthew 18 applies to private disputes brween people such as disputes over financial matters, and cannot be applied to a serious sin against God's aws, such as child abuse. I understand why the defence witnesses are genuinely puzzzled as to how this could have come up in this situation. However, I am confident that Matthew 18 was mentioned specifically to the plaintiff and that she was told it applied. Further I am confident that it was after receiving this advice that she spoke to the Mott-Trilles.

 

[63] On March 29, 1991 (more than a year after these events occurred) Frank Mott-Trille wrote a letter to the legal department of Watch Tower in New York in which he stated that the plaintiff came to his home on December 11 and 12 1989. That cannot be correct. Mr Longworth's notes made at the time are a more accurate and reliable source for establishing chrotology. His own first discussions with the plaintiff were on December 11 and 12 and it appears fom his notes that the first time he considered the application of Matthew 18 was on December 13. It is probable that he said something to the plaintiff about Matthew 18 on that same date and that Ms. Boer went to see Jonathan Mott-Trille after that. It is also probable that the plaintiff went to the Mott-Trille home on two consecutive days sometime between December 13 and December 18 or 21. On December 15 the plaintiff suggested to Mr. Longworth that she migh t speak with her mother rather than her father. Then on December 17 she did in fact call her mother. The next day December 18 Gower Palmer spoke with Mr. Longworth and was told to report the matter to the Shelburne elders. In Mr. Mott-Trille’s letter of March 29, 1991 he states that about two days after he saw the plaintiff he received a call from her father inquiring about the possibility of his acting for him on serious criminal charges that might arise. By that date Mr. Palmer was already aware that this matter had been raised by his daughter. It follows that the call to Mr. Mott-Trille could not have been earlier than December 17.

 

[64] The plaintiff gave conflicting evidence about whether she was told it would be acceptable to ask her mother to get her father to contact the Shelburne elders, or whether she simply took this step against the advice and direction of Mr. Longworth. Her recollection on this point is not reliable. It would appear that something was likely going on between December 13 (when Matthew 18 was first mentioned to her) and December 17 (when she called her mother rather than her father). It seems to me that the logical conclusion is that her discussions with the Mott-Trilles happened sometime between December 13 and December 17. On December 15 Ms. Boer told Sheldon Longworth it was simply “too hard” to talk to her father about this. On the 16th he encouraged her to call her father, but she said maybe she would call her mother instead. I find as a fact that Mr. Longworth did not force the issue at that point, but more or less acquiesced in the plaintiff’s proposal to call her mother. I further find that the plaintiff’s decision to take this course of action was likely based on the advice of Mr. Mott-Trille that Matthew 18 did not apply.

 

[65] Based on the evidence of the witnesses and the limited documentation available, I conclude on a balance of probabilities as follows:

 

(a) Mr. Longworth told Ms. Boer on more than one occasion that Matthew 18 applied and tht she should speak directly to her father about her abuse.

 

(b) This advice was an inaccurate application of the Scripture.

 

( c ) Ms. Boer was extemely upset at the prospect of having to confront her father. Her level of distress was accurately described by her and Jonathan Motte-Trille. Although Mr. Longworth knew she was upset, and indeed crying much of the time, he did not perceive her distress to be as acute as that described by Mr Motte-Trille.

 

(d) Ms. Boer was given correct advice by Mr Motte-Trille that Matthew 18 did not apply.

 

(e) Thereafter she spoke to Mr. Longworth and told him that she might speak to her mother rather than her father. Mr. Longworth did no press the point. She then actually spoke to her mother and asked her mother to direct her father to contact the elders.

 

 

(f) Up to December 29, 1989, although there had been discussison about the requirement of invoking Matthew 18, it was not actually applied and Ms. Boer did not have any direct confrontation with her father.

 

( iii) Instructions Not to Report to Child Welfare Authorities

 

[66] Before considering whether the December 29th meeting was an application of Mathew 18, I will set out my factual findings on the issues of medical treatment and reporting to the authorities as my findings on these points have an impact on whose evidence I accept as to the details of the December 29 meeting.

 

[67] Ms. Boer testified that at the first meeting at her parent’s home which took place on December 29 , 1989 Mr. Cairns and Mr. Brown warned her against reporting her father’s abuse to the Children’s Aid Society (“C.A.S.”). She said that she had mentioned to them that Frank Mott-Trille advised her to speak to the C.A.S. and had arranged an appointment for her to meet with a psychiatrist. According to Ms. Boer, the two elders specifically told her not to go to the C.A.S. because there would be an investigation and her father could lose his job, leaving her mother destitute. She was adamant this this conversation occurred with the elsers and that it was not a conversation with only her parents. Ms. Boer’s evidence on this point is completely at odds with all the other evidence.

 

[68] One of the first things Sheldon Longworth did upon hearing the plaintiffs first disclosure was to consult the 1988 Watchtower letter setting out the policy for dealing with cases of sexual abuse of children. Likewise, Brian Cairns turned to this document immediately after the December 29 meeting to determine what should be done. The 1988 Watchtower document was an exhibit at trial. I do not need to decide whether the directions set out therein are completely in accordance with the requirements of the relevant child protection statute in 1988 or in 1989/1990. Nothing in this case turns on that legal issue. What is clear from the document is that the official policy of the church was to report child abuse cases to child welfare officials. Further, the policy advises that elders as ministers have a positive duty to ensure that child abuse is reported. Although the policy suggests it is permissible to require the offender or family members to report the matter to their own physician who would then have a duty to report, the policy also emphasizes the need for the elder to follow up to ensure that the reporting in fact occurred.

 

[69] Steve Brown and Brian Cairns both denied having told the plaintiff that she should not report the abuse. Both testified they told the family they would consider what needed to be done and get back to them. The plaintiff also confirmed this was how the meeting was left. Mr. Cairns and Mr. Brown also testified that they asked a lot of questions to ascertain whether the two younger children were at any risk for abuse at Mr. Palmer’s hands, but were convinced there was no such danger.

 

[70] It is clear that both Mr. Cairns and Mr. Brown were aware of the reporting requirement However, they were also aware that the Palmer family had a previously scheduled vacation to go Florida for three weeks in January, for which they were scheduled to depart shortly after the December 29 meeting. Since they were satisfied there was no risk to the younger children they decided to take no steps until the family returned from vacation.

 

[71] Mr. Cairns called Mr. Didur at Watch Tower head office shortly after the December 25 meeting. Mr Cairns testified, and I accept, that Mr. Didur said reporting was clearly required because there were still children in the home. Mr. Didur said the ideal situatuion would be ato get the abuser to report himself, either to a doctor or the C.A.S., but that the elders had to report if Mr. Palmer failed to do so. By this time the Palmers were in Florida and Mr. Didur and Mr. Cairns agreed it would be permissable to delay reporting until their return.

 

[72] Mr Cairns wrote a letter to Watch Tower head office on January 21, 1990. This was before the Palmers had returned from their vacation. I am satisfied this letter was written and sent at the time of the events. It is clear from the letter that Mr. Cairns was aware of the reporting requirement. He mentions having discussed with the family the possibility of Mr. Palmer going to a medical docor to report the problem, but without giving any final direction. The response from Watch Tower, dated January 25 is also clear about the necessity of reporting

 

[73] Mr. Cairns tesified, and I accept, that when the Palmers returned from Florida, Mr. Cairns told Mr. Palmer he had to report himself to a medical doctor and Mr. Palmer agreed to do so. Later Mr. Cairns was advised that both Mary and Gower Palmer had gone to the doctor on January 29, 1990. Mr. Cairns reported to the Watch Tower head office that Mr. Palmer had talked to a docor that day but that the doctor had indicated she was unsure whether there was an obligation to report to C.A.S. in this situation (presumably because the complainant was no longer a child).

 

[74] A few days later Mr. Cairns and Mr. Didur spoke again by phone. Mr Cairns testified that Mr. Didur instructed him to ensure a report was made to the Childrens Aid Society since it was unclear whether the Palmers’ doctor would be reporting. Mr. Cairns therefore called Mr. Palmer and told him that he should personally report himself to the C.A.S. Mr. Palmer reported back to the elders that he had taken his wife and two youngest children with him to the Children’s Aid Society and reported the matter to them. Mr. Brown testified, and I accept, that he personally called the C.A.S. office immediately thereafter to confirm the report had been made. The plaintiff acknowledges Mr. Palmer did in fact report himself to the Children’s Aid Society.

 

 

[75] I find that Mr. Cairns, Mr Brown, and Mr. Didur were aware of the reporting requirement and fully intended to comply with it. I need not comment on whether they made the right decison to allow Mr. Palmer to go on vacation with his family before any report was made, nor whether it was appropriate to have the initial report come through Mr. Palmer rather than from the elders. There is no need to resolve those points to decide this case. However, it is clear there was no plan to cover up this abuse from the authorities. On the contrary, all of the elders involved were consistent in their resolve to ensure the Children’s Aid Society was made aware of these allegations. Further, it was because of the elders that the C.A.S. was in fact notified. Based on this alone, it is improbable that the elders told Ms. Boer in December 29, 1989, that she should not tell the authorities because her father could go to jail and her mother end up destitute.

 

[76] In additon to the improbability of Ms. Boer’s evidence in this isssue and the documents cooborative of the defendants’ version, I have taken into account my findings as to the credibility of Mr. Cairns and Mr. Brown. I believe both were telling the truth as best as they could recall it. Mr. Cairns, in particular, struck me as a thoroughly honest witness. He was careful never to overstate. He was even careful to ensure that he was testifying as to what he could actually remember as opposed to what he had heard in court earlier in the trial and accepted to be true. I am confident he did not lie to the court. I am also confident that he could not simply be mistaken as to whether he specifically told Ms. Boer that this should not be reported

 

[77] It follows that I am accepting Mr. Cairns’ evidence on this point in preference to that of Ms. Boer. I wish to emphasize that this does not mean I found Ms. Boer to be a less than honest witness. That is absolutely not the case. Ido not question her honesty and integrity. What I do question is her ability to recall accurately and specifically who said what at a meeting thirteen years ago-- a meeting which, by her own account, was highly emotional and traumatic for her. I do no doubt that following the meeting and perhaps eveen before and during the meeting there was pressure on Ms. Boer to put the interests of her mother and other family members ahead of addressing the abuse by her father. I do not doubat that she was asked to consider what would hapen to the family if her father went to jail and her mother became destitute. Her own evidence, which is corroborated to some extent by notes of others at around that time, is that her parents were angry with her for having brought this matter up again. If there was pressure on Ms. Boer to “bury” the issue and to avoid reporting to the authorities, it most likely came from her mother. Given Mrs. Palmers’ devotion to her religion, it is entirely possible that she cast this as a religious duty and that over the years Vicki Boer has come to believe it emanated from the elders. However, her recollection is mistaken. I find as a fact there was so suggestion from Mr. Bown or Mr. Cairns that the matter should be covered up or that it should not be reported to the authorities.

 

[78] I do not consider it necessary to deal extensively with the evidence of Frank Mott-Trille on this point. He did not have first-hand knowledge of the communications between Watch Tower head office and the elders who were directly involved in dealing with the matter. I conclude that his outrage was more directed towards how the issue was handled from a religious point of view, whether the appropriate decision-making rules for the congregation were followed and whether the appropriate sanctions were imposed against Gower Palmer. If his concern was truly that there was a cover-up or failure to report to child welfare authorities, he had an obvious remedy. He was the first elder of the Shelburne congregation to become aware of the abuse and as a result of the report directly to him in mid-December by Ms. Boer . However he took no steps himself to bring the matter to the attention of the authorities at that time.

 

(iv) Instructrions Not to Seek Treatment

 

[79] Ms. Boer testified at trial that she was specifically advised by the elders at the December 29, 1989 meeting that she should not see a psychiatrist or get medical help. She was adamant that this instruction came from the elders. She said she believed she needed counseling and the only reason she did not seek help was because she had been instructed not to.

 

[80] Brian Cairns testified at trial that he never instructed Ms. Boer not to get medical help. On the contrary he suggested it would be a good idea. Mr. Brown supported Mr. Cairns’ evidence. He testified that Ms. Boer was told it was a matter of personal choice whether she sought psyhchiatric help and was never discouraged from doing so. I accept their evidence.

 

[81] I am convinced of the honesty of Mr. Cairns on this point. I find his evidence to be compelling not just because I believe him to be a truthful witness but also because he provided personal information about his own circumstances and those of his family which convince me that he would never have counselled a young woman in the plaintiffs position to avoid psychiatric help. Mr. Cairns said that at the time of the December 29 meeting he was enormously sympathetic to Ms. Boer’s situation. He considered what Mr. Palmer did to be a “horrible thing” and he immediately thought about his own two teenage daughters who were close to the plaintiffs’ age at the time. He also testified that his wife is a surviver of childhood abuse and he is fully aware that the harmful effects of such abuse can live on for many years. Further he is not averse to psychiatry. He revealed he suffers from depression himself and has sought treatment from a psychiatrist on more than one occasion.

 

[82] Mr. Cairns’ evidence is corroborated by the documents produced at trial which were written in early 1990. In Mr. Cairns’ letter of January 21, 2990 he reported to Watch Tower:

 

The daugher was quite upset while trying to tell us about it. She expressed that she felt much better emotionally now that we had heard her out. The elders gave encouragement to her and suggested that in addition to getting spiritual refreshment she may want to get medical assistance if she felt it was necessary . That would be her decision and we would not push that.

 

[83] It is unlikely that the plaintiff failed to see a psychiatrist because of anything said by the defendant. Frank Mott-Trille had arranged an appointment for Ms. Boer with Dr. Kaplan. He said this would have been within a few days of when he met with Ms. Boer in mid-December 1989. It makes sense that it would have been soon after that date as Mr Mott-Trille and his son both thought Ms. Boer might have been suicidal. It is unlikely they would have delayed several weeks. The meeting with the elders was on December 29, 1990. It is most likely that by then Ms. Boer had already failed to attend the appointment with Dr. Kaplan before the Shelburne elders were even involved. Thus it would appear she was already reluctant to talk to a psyhchiatrist before she met with the elders. According to Dr. Awad, the psychiatrist called as an expert witness at trial by the plaintiff, this is not unusual. He testified that 50 percent of adolescents will fail to attend their first scheduled appointment and that in his experience it is not uncommon to try five times before succeeding in having the patient actually attend for counselling.

 

[84] In his January 29, 1990 letter Mr. Cairns asked Watch Tower for guidance on a number of questions including whether it was necessary for the elders to insist that “both parties” receive psychiatric help. Watch Tower responded that following the handling of a case both the accuser and accused might need the assistance of a physician or psychologist for mental and emotional recovery and that this should be recommended. The letter then states that the elders can “only recommend” and that the kind and extent of professional help sought is a matter of personal decision.

 

[85] In the minutes of the Judicial Committee meeting dated January 31, 1990, the elders note their understanding that the plaintiff would be going to a psychiatrist at the encouragement of Frank Mott-Trille. It was apparently the understanding of other elders that Ms. Boer would be getting psychiatric care as recommended by Mr. Mott-Trille. The Children’s Aid Society was under the same impression.

 

[86] I find that the defendants did not impede Ms. Boer from getting psychological counselling, but rather that they encouraged it. She received the same encouragement from Mr Mott-Trille. She elected, as was her right, not to act on that advice. It was years later that she finally decided to seek treatment and initially that was for problems which she did not immediately connect to the sexual abuse. The delay in obtaining treatment is in no way attributable to the defendants.

 

[87] Again I hasten to add that my finding on this issue, although completely at odds with Ms. Boer’s evidence at trial, does not mean I think she has been untruthful. I accept that she honestly believes she was instructed not to get counselling. However, she was under enormous stress at the time and was subjected to equally horrible pressure at home and in her religious community in the months thereafter. This has affected her ability to recall accurately the particulars of what was said at those meetings with the elders. It may well be the case that she could not face talking to another person about the abuse at that time, or even that she was persuaded that it was not an appropriate course of action for religious reasons. After the fact she has misremembered this discomfort about seeing a doctor as having been a directive from the elders. However I am satisfied on the evidence that she is mistaken. The elders never attempted to persuade her to avoid medical help.

 

(v) December 29, 1989 Meeting

 

[83] It was Gower Palmer who set up the December 29, 1989 meeting. He had been told by his wife and by Sheldon Longworth that he needed to inform the Shelburne elders of his abuse of his daughter Vicky. Mr . Palmer telephoned Steve Brown and asked him to come to his home to talk about an important family problem. Mr. Brown did not know the nature of the problem. Mr. Brown asked Mr. Cairns to come as well because he was the senior elder (presiding overseer) of the Shelburne congregation. Neither Mr . Brown nor Mr. Cairns knew what the meeting was about untill after they got there and heard Mr. Palmer’s explanation. Ms. Boer testified she received a call from her father telling her the time of the meeting and she felt she had to attend because of the previous discussions she had with Mr. Longworth

 

[89] All parties agree that the meeting took place in the Palmer kitchen and that Mr. Palmer, Mrs Palmer, Mr. Cairns, Mr. Brown,and the plaintiff were all present at the same time. The parties also essentially agree on how the meeting started. They opened with a prayer following which Mr. Palmer said he had something that needed to be told. He then revealed some of the things he had done to his daughter Vicki several years earlier when she was still a child.

 

[90] There is some divergence between the evidence of Vicki Boer and the evidence of Messrs Cairns and Brown as to how the meeting proceeded from there. I have already ruled that I do not accept Ms. Boer’s evidence that the elders told her not to seek medical assistance and not to report the abuse to the authorities. These were important points about which she was certain in her own mind. Her memory on those was inaccurate. I am therefore very reluctant to rely on her evidence as to other details of the meeting where her evidence conflicts with that of Mr. Cairns and Mr. Brown.

 

91 Although Ms Boer may have perceived the meeting as a confrontation and while I am certain that it felt that way to her, I find that it did not actually proceed that way. Mr. Palmer opened by confessing some of what he had done. I accept the elders’ description of the way Mr. Palmer conducted himself, that he was openly upset, stammering, tearful, and ashamed. Like them I was struck by the similarity of their descriptions and the evidence given by Scott Boer of how Mr. Palmer appeared on the much later occassion when he discussed it with him. I also accept the elders’ description of Vicki Boer as being very upset and weeping but nevertheless able to give a coherent account of what happened. At times she added to or corrected details of Mr. Palmer’s account. The elders asked her questions so they could determine the extent and nature of the abuse. Ms. Boer admitted under cross examination she did not complain to Mr. Cairns and Mr. Brown that she did not want to be there and never asked or attempted to leave.

 

[92] It is difficult to see what Mr. Cairns and Mr. Brown could have done differently. They were sympathetic to the plaintiff. She understood they believed her story. They knew it was Ms. Boer who had started the process. They played no role in causing her to be there and were unaware of any ambivalence on her part. They had no reason to believe that she felt she was under any compunction to be there, nor were they aware that this session had anything to do with Matthew 18. It was reasonable, and indeed appropriate in the circumstances for them to ensure that the plaintiff’s voice was heard and that they not rely solely on Mr. Palmer’s version of the events.

 

[93] That said, I accept Ms. Boers’ evidence that this was a traumatic experience for her. She was young and vulnerable and had not yet dealt with any of the complex issues arising from being the victim of childhood sexual abuse. Further, because of the sheltered religious environment in which she had been raised she did not feel she had any choice but to follow the process directed by the Jehovah’s Witness elders whom she had spoken to in Toronto. That process was psychologically harmful to her, the extent of which I will deal with later in these reasons. Although Mr. Cairns and Mr. Brown cannot be faulted in this regard, the fact remains that Ms. Boer participated in this whole process because of the direction she recieved from Mr. Longworth and Watch Tower, and she did suffer some injurty as a result.

 

(vi) The January 31, 1990 Meeting

 

[ 94] It is clear that the January 31 1990 meeting was a Judicial Committee to determmine appropriate sancrions to be imposed on Mr. Palmer as a result of his sin, the sexual assault of his daughter.

 

[95] After the December 29, 1989 meeting Mr. Cairns and Mr. Brown were satisfied that nothing further need be done. They had recommended medical attention for the whole family. They did not believe the two younger children were in any danger but were nevertheless ensuring that the appropriate authorities were notified. From a spiritual perspective they felt Mr. Palmer was genuinely repentant and had atoned for his sins by being more active in his religion. They believed as well that he had not repeated this sin and was a changed person. They therefore decided to do nothing further. However, Frank Mott-Trill took the position that the matter had not been dealt with properly, that the sin was serious and required more serious sanctions and that a full Judicial Committee of three elders was required to make a decision. He rasied the matter at a January meeting of the elders. it was directly because of his intervention that the January 31, 1990 meeting with the Palmer family took place.

 

[96] Mr. Cairns and Mr. Brown ultimately agreed with Mr Mott-Trilles argument that a full Judicial Committee was appropriate. They asked Mr. Mott-Trille to be the third member of the panel but he declined on the basis that he had a conflict. He took the position that they had a conflict as well but Watch Tower head office did not agree. Since no other local elder would agree to serve on the committee Mr. Cairns asked Dave Walker, an elder in a nearby congregation, to participate. There was much evidence at trial as to whether the committee was properly constituted. I do not need to decide that point in order to deal with the plaintiff’s claims in this action and I therefore will not do so.

 

[97] Ms. Boer testified that the Judicial Committee meeting proceeded in exactly the same manner as the December 29 meeting, with all of the participants in the kitchen at the same time, and with her being required to recount her story in front of her father. She said it was very confrontational, even worse than the first meeting and that she had a panic attack during the session. However, all three elders who testified at trial said that they spoke separately to each of Gower Palmer, Mary Palmer and their daughter Vicky. Having obtained Mr. Palmer’s confession they told Vicki what he had said and asked for her comments. The elders testified that there was no confrontation beftween the plaintiff and her father. She corrected some of the things he said which she felt had minimized what happened. The evidence of Mr. Cairns, which I accept, was that this format was deliberately chosen to make it easier for the plaintiff. The elders said the plaintiff was upset and crying but able to regain her composure. They realized this was difficult for her but she never objected to being there nor to the process. After speaking separately to the three family members, the elders met again with Mr. Palmer to discuss with him the sanctions to be imposed. They then met with all three family members briefly to encourage their spiritual progression and ended the meeting with prayer.

 

[98] In my opinion Ms Boer is very confused about this last meeting. I have already noted above that her memory of the details of these meeetings is not wholly reliable. The evidence given by the three elders at trial is consistant with the minutes of the meeting which they prepared immediately afterwards. Ms. Boer did not make any notes at the time. It is apparent that she has done her best to reconstruct the events of 1989 and 1990 many years later. I note that her earlier attempts to put a chronology together contained obvious errors and were inconsistent which much of her evidence at trial. Where her evidence conflicts with that of Mr. Cairns as to what happened at the Judicial Committee meeting on January 31, I accept his evidence.

 

(vii) Conclusions on Key Facts

 

[99] I set out in paragraph [46] above five crucial questions of fact that neededd to be resolved. I have concluded aas follows

 

(a) Sheldon Longworth instructed the plaintiff that she was required to confront her father pursuant to Matthew 18:15 - 18. Initially she was instructed to tell her father to report his sin to the elders in Shelburne. The plaintiff did not actually do this. Instead with the acquiescence of Mr. Longworth, she asked her mother to tell her father to report the matter to the Shelburne elders.

 

(b) The December 29, 1989 meeting was set up by Mr. Palmer and it was he who invited the plaintiff to attend. Mr. Cairns and Mr Brown did not know what the meeting was about and had no part in compelling the plaintiff to attend. The process which led to the plaintiff’s attendance at the December 29, 1987 meeting was put in place as a result of advice given by Sheldon Longworth and Watch Tower that Matthew 18 applied. But for this advice, Ms. Boer would not have attended. The meeting was psychologically harmful to her

 

(c) The defendants did not instruct the plaintiff not to get medical help. She chose not to seek professional help herself against the advice of the elders and Mr. Mott-Trille.

 

(d) The defendants did not instruct the plaintiff that her father’s abuse should not be reported. On the contrary, the defendants directed Mr. Palmer to report himself to the C.A.S. and then followed up directly to ensure he had done so.

 

(e) The Januay 31, 1990 meeting was a Judicial Committee called to decide the appropriate sanction to be imposed upon Mr. Palmer as a result of his sin. It was not an application of Matthew 18. There was no confrontation beetween the plaintiff and her father.

 

H. Failure to Report and Forbidding Medical Treatment

 

[100] The plaintiff’s claim against the defendants includes two basis of liablility which are not viable based on my factual findings.

 

[101]The plaintiff alleged the defendants advised her not to seek medical treatment from a psychiatrist. I do not need to decide any legal issues to deal with this aspect of her claim. I have found on the facts that none of the defendants gave her such advice.

 

[102]The plaintiff also alleged that she sustained harm as a result of the defendants’ failure to report her father’s abuse to the appropriate authorities as required by law. I have already noted above that it is not necessary for me to rule on the precise extent of the reporting requirement in order to decide this case. It is also unneccessary for me to decide whether, as a question of law, a delay in reporting under the relevant legislation can support a cause of action in negligence or breach of fiduciary duty. I therefore will not do so.

 

[103] The defendants Brian Cairns and Steve Brown first learned of the abuse on Decembaer 29, 1989. The abuse was reported to the Childrens Aid Society in Orangeville (the office with auathority extending to Shelblurne) in February 1990. It would appear that representatives of the C.A.S. interviewed the plaintiff’s younger sister (who was still a child) to ensure she had not been a victin and was in no danger. The authorities were satisfied that no further steps needed to be taken. They did not even speak to the plaintiff. Therefore there cannot have been any damages to the plaintiff as a result of the delay in reporting between December 29, 1989 and February 5, 19990.

 

[104] Counsel for the plaintiff argues that the Toronto elders had a duty to report, and that if they had exercised that durty by reporting in Toronto C.A.S. authorities would have intervened prior to the December 29, 1989 meeting and the plaintiff would have been spared the trauma of the two confrontations with her father. There is no factual foundation for that argument. There is no reason to believe the Toronto office of the C.A.S. would have taken any steps whatsoever since the alleged abuser lived outside the Toronto area as did anyone vulnerable to future abuse at his hands. Ms. Boer was by then an adult and outside the jurisdictional mandate of any Children’s Aid Society. Even if the Toronto office had decided to intervene there is no reason to believe they would have handled the situation any differently than the Orangeville office. In particular, there is no evidence to establish that a report to the Toronto C.A.S. would have had any impact on how the plaintiff was treated by the elders. Therefore even if there was any liability for the delay in reporting, there is no causal link between that conduct and any harm suffered by the plaintiff.

 

 

J. Breach of Fiduciary Duty

 

[105] The plaintiff claims damges for breach of fiducuary duty based on the manner in which the defendants dealt with her after she disclosed her father’s abuse. Her main focus is on the ‘confrontation” meetings with her father, which she alleges she only attended because she was required to by the elders. She argues that forcing her to attend these meetings was harmful to her and inconsistant with the fiducuiary duty of the defendant to act in her best interests. There was also considerable attention at trial to the aftermath within the Jehovah’s Witness community when rumours circulated about the plaintiff’s allegations of abuse. The plaintiff believes that the relatively insignificant punishment meted out to her father led others in the community to believe she had made false allegations about him. She also believes that members of the community blamed her somehow for the internal struggles among the elders of the congregation. As a result of all this, she felt she was shunned within the community which was also psychologically harmful. Although it is not entirely clear to me whether this is asserted as a basis for recovery of damges for breach of fiduciary duty, for the sake of completedness I will deal with this as if it were.

 

[106] In assessing a claim for breach of fiduciary duty, the typical starting point is a consideration of the nature of the relationship between the parties to determine if a fiduciary duty arises. Upon concluding the defendant stands in a fiduciary relationship, one would go on to consider the nature and extent of that duty, and only then, whether it has been breached. In the case before me, I intend to approach from the other direction. I consider first the following question: assuming there is a fiduciary duty, can the conduct of any of the defendants be properly characterized as a breach of fiduciary duty? In my view, it cannot. This conclusion is fatal to the cause of action. It is therefore unnecessary for me to decide whether there was a fiduciary responsibility between the defendants and the plaintiff, or to resolve the far more complex question of the nature and extent of such a responsibility in circumstances such as these where there may be competing issues of religious freedom. The resolution of those issues is better left to a situation where the disposition of the case requires it.

 

[107] The concept of fiduciary duty is inextricably linked to principles of trust, loyalty, and good faith. In Fiduciary Duties in Canada , looseleaf, (Toronto, Thomson Canada Ltd, 2000), Mark Ellis, at p 1-1, seeking to defin “fiduciary”, cites the following words of Southin, J.A. in Jostens Canada Ltd v. Gibsons Studio Ltd ., (1997) 99 B.C.A.C. 35, 162, W.A.C. 35,42, B.C.L.R. (3d) 149, (1998) 5 W.R.R. 403 (B.C.C.A.)at para 19:

 

The word itself (fiduciary) is of Latin origin-from the noun “ fiducia ” meaning “trust” which is related to the noun “ fidelitas ” from which we derive the word “fidelity” through, if not a common descent, then association with the word “ fides ” (faith) which turns up in the phrase “ bona fide ”, and which is itself closely linked to the word “ fidere ” (to trust) which brings us back to “ fiducia ”.

 

[108] Just as some element of trust must be present before a relationship can be said to be fiduciary, so too there must be some form of betrayal before there can be breach of fiduciary duty. That does not mean that malice or bad faith must be shown in order to establish breach of fiduciary duty, nor is it necessary in every case to show a personal benefit to the fiduciary in order to find liability. However, simple negligence by a fiduciary in carrying out his or her duties will not be sufficient to constitute breach of fiduciary duty.

 

[109] This principle is well-developed in cases involving the solicitor-and-client relationship. It has long been recognized that a solicitor owes a fiduciary duty to his or her client. However, not every act by a solicitor that causer harm to the client can be properly characterized as a breach of fiduciary duty. In Fasken Campbell Godfrey v. Seven-Up Canada Inc . (1997) 142 D.L.R. (4 th ) 456 (Ont. Gen. Div.) aff’d (2000) 182 D.L.R. (4 th ) 315 (Ont. C.A.), application for leave to appeal dismissed. (2000) S.C.C.A. No. 143 the trial judge found at page 483 that a failure to warn a client about a transaction was merely negligence, not breach of fiduciary duty. To similar effect is the Ontario Court of Appeals decision in Canada Trustco Mortgage Company v. Bartlett and Richardes (1996) 28 O.R. (3d) 768 (C.A.)in which Weiler J.A. stated at p. 774:

 

Although the professional relationship between solicitor and client is of a fiduciary nature, many of the tasks undertaken by a solicitor for a client may not involve a question of trust and therefore do not attract a fiduciary obligation.

 

[110] In Girardet v Crease and Co (1987) 11 B.C.L.R. (2 nd ) 361 (B.C.S.C.) Southin J. held:

 

“Fiduciary” comes from the Latin “fiducia” meaning “trust”. Thus the adjective, “fiduciary”,means of or pertaining to a trustee or a trusteeship. That a lawyer can commit a breach of the special duty of a trustees, e.g., by stealing his client’s money, by entering into a contract with a client without full disclosure, by sending a bill claiming disbursements never made and so forth is clear . But to say that simple carelessness in giving advice is such a breach is perversion of words .The obligation of a solicitor of care and skill is the same obligation of any person who undertakes for reward to carry out a task. One would not assert of an engineer or a physician who had given bad advice and from whom common law damages were sought that he was guilty of a breach of fiduciaty duty. Why should it be said of a solicitor ? I make this point because an allegataion of breach of fiduciaty duty carries with it the stench of dishonestry-- if not of deceit then of constructive fraud . (Emphasis added.)

 

Although this excerpt is from a British Columbia trial court decision, I believe it accurately reflects the law in Ontario. I note that Southin J’s statement of the law was specifically appproved by the Supreme Court of Canada in Las Minerals v International Corona Resources Ltd [1989] 2 S.C.R. 574 both in LaForest J’s Majority opinion at para. 147 and in Sopinka J’s partial dissent at para 31 as well as by the Ontario Court of Appeal in Canada Trustco Mortgage Co. v Bartlet , supra at p. 774

 

[111] There have been other decisions from British Columbia courts which have applied similar principles e.g . W.R.B. v Plint [2001] B.C.J. No. 1446 (S.C.) J.H. v. British Columbia [1998] B.J.C. No 2926 (S.C.) and C.A. v. Chritchly [1998] B.C.J. No. 2587 (C.A.) In C.A. v. Chritchly the British Columbia government had contracted with the defendant Critchley to operate a wilderness group home for troubled male youths, including the plaintiffs. Critchley repeatedly physically and sexually abused the plaintiffs who had been entrusted to his care. The court of appeal upheld trhe trial judge’s ruling that the government was vicariously liable for Critchley’s torts. However, the court of appeal reversed the trial judge’s finding that the government was itself in breach of it’s fiduciary duty to the plaintiffs. McEachern C.J.B. C., writing the lead decision reviewed the Supreme Court of Canada jurisprudence on breach of fiduciaty duty and concluded that such a finding should not be made “without personal wrongdoing beyond possible carelessness or negligence” see paras 74-84. He then held,at para 85:

 

Applying this approach I conclude that it would be a principled approach to confine recovery based upon fiduciary duties to cases of the kind where, in addition to the other requirements such as vulnerability and exercise of a discretion, the defendant personlly takes advantgae of a relationship of trust or confidence of his or her direct or indirect personal advantage . This excludes from the reach of fiduciary duties many cases that can be resolved upon a tort or contract analysis, has the advantage of greater certainty, and also protects honest persons doing their best in difficult cidcumstances from the shame and stigma of disloyaltly or dishonesty. (Emphasis added.)

 

[112] I agree with most of what Chief Justice McEachem said on this topic in the Critchley case, although I would stop short of requiring a direct or indirect personal advantage to the fiduciary in order to constitute breach of fiduciary duty. The vast majority of cases in which breach of fiduciary duty is established will involve some benefit to the fiduciary, just as they will typically involve a detriment to the person to whom the duty is owed. However, in my view, neither is an absolute requirement in order to establish breach of fiduciary duty. What is required is conduct by the fiduciary which is in some manner a betrayal of the trust relationsip. Negligence in carrying out fiduciary obligations, while subject to redress through tort or contract remedies, ought not to characterized as a breach of the fiduciary duty without some element of betrayal or bad faith on the part of the fiduciary. For example, suppose a trustee responsible for administering a fund for the benefit of several beneficiaries distributes the fund unequally. If the trustee does this deliberately, intending to benefit one beneficiary over the others due to favoritism towards the one or animus towads the others, that would be breach of fiduciary duty regardless of whether there was any direct or indirect benefit to the trustree. However, if the unequal distribution was due to an arithmetical error, this would merely be negligence, not breach of fiduciary duty.

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