Decision to deny appeal of 2020 court ruling makes Catholic archdiocese liable for abuse at Mount Cashel

By Bryan Dryden, Canadian Catholic News

[Ottawa – CCN] – The Archdiocese of St. John’s is responsible for paying victims of child abuse at Newfoundland’s infamous Mount Cashel Orphanage.

In a decision announced Jan. 14, the Supreme Court of Canada has declined to hear one last appeal from the archdiocese, which has always denied it was responsible for the abuse that occurred at Mount Cashel dating back to the 1950s. The orphanage was run by the Christian Brothers of Ireland, which declared bankruptcy in 2012 while settling abuse lawsuits. The orphanage itself was demolished in 1992.

As is often standard practice, there was no reason given for why Canada’s Supreme Court decided not to hear the appeal filed by the Archdiocese of St. John’s that sought to reverse a Newfoundland and Labrador Court of Appeal ruling that found that the diocese had “vicarious liability” for what went on at Mount Cashel.

“(C)onsidering the whole of the evidence, we conclude that the Brothers at Mount Cashel were working on the account of the Archdiocese when they were caring for the appellants, and that the relationship between the Brothers and the Archdiocese was sufficiently close to make the imposition of vicarious liability on the Archdiocese appropriate,” the 135-page July 2020 ruling by the Newfoundland Court of Appeal said.

The archdiocese has argued before the court that it was not involved in the orphanage’s day-to-day operations and that the Christian Brothers was a lay organization whose members were not ordained priests of the archdiocese.

The lower court ruling in Newfoundland that exposed the Catholic Church to financial liability could have implications not only in St. John’s and across Canada, but the case was also being closely monitored internationally.

Court cases related to what went on at the Mount Cashel orphanage have been ongoing for more than two decades after the Hughes Inquiry in 1989 exposed the abuse suffered by children at the orphanage overseen by the Christian Brothers.

The Archdiocese of St. John’s said in a statement it will review the Supreme Court’s ruling before commenting, but added: “The Archdiocese of St. John’s has immense sympathy for those who suffered abuse at Mount Cashel Orphanage and we ask that all join with us in praying for healing for those who suffer as a result of abuse.”

The archdiocese’s argument that it did not oversee day-to-day operations at Mount Cashel was at first accepted by the Supreme Court of Newfoundland and Labrador in 2018, which initially ruled in favour of the archdiocese in a case involving four plaintiffs.

But in a unanimous three-judge decision in July of 2020, Newfoundland’s court of appeal ruled that the diocese was in fact liable and the Church was ordered to pay out about $2 million in damages.

Newfoundland’s Court of Appeal ruled in July that “the Archdiocese established Mount Cashel orphanage to provide care for boys within its religion and culture, and staffed it with Brothers to whom it assigned the task of caring for the resident boys, including the appellants. The evidence shows that this close relationship continued up to and including the 1950s when the appellants were resident.

“Through these years the Archdiocese had authority over the Brothers with respect to their care of the boys in accordance with the Archdiocese’s mandate, had a significant hand in the overall administration and operation of Mount Cashel, exercised authority and control over fundraising, set admissions and child welfare policy, facilitated admissions, and ensured that the Roman Catholic faith informed the education and religious training of the residents,” according to the court ruling, which added: “the Archdiocese was in a position to reduce risk to the appellants but did not do so. It had the ability, through a Diocesan contract or otherwise to set up oversight systems to provide a check on how the Brothers were caring for the appellants.”

“The Brothers were engaged by the Archdiocese to perform services in an orphanage it established and continued to administer and financially support for the benefit of the Archdiocese’s objectives,” the July ruling stated.

“The Archdiocese cannot divest itself of responsibility for the Brothers’ wrongdoing by setting up a situation involving risk, perpetuating that risk, and then saying that Church structure denied them authority over how the Brothers carried out their work at the orphanage,” the ruling continued.

The case was considered a test case for up to 60 other possible plaintiffs and now more cases are expected to go forward by other abuse survivors or their estates.

“What this means is that in this instance the Church can not claim it has no liability,” said Geoff Budden, who was one of the lawyers for the plaintiffs. “The issue of liability has been settled.”

He expects more cases will now be filed in relation to Mount Cashel specifically, but how this will impact other cases involving claims of Church liability depends on the circumstances of each case.

“It all depends on what the Church’s relationship to an organization is, and there are many different relationships between organizations and the Church,” Budden told  Canadian Catholic News in a Jan. 14 interview.

“This doesn’t create blanket liability; the appeal decision in Newfoundland was a nuanced decision that was specific to the situation and relationship between the Church and the orphanage here,” Budden said. “I do, however, expect any lawyers who have clients that are trying to prove Church liability will be looking very closely at what the appeal court ruling said and how that may affect other cases.”

Budden said his clients feel vindicated for having demanded that the Catholic Church in Newfoundland and Labrador be held accountable for what happened at Mount Cashel.

“They are very satisfied with what has happened, even though whenever this comes up of course it brings back up all the bad memories of what happened,” Budden said. “It would be wrong to say they are happy, but they are satisfied.”