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Excerpt from Wanda Young v. Leslie Bella, William S. Rowe and Memorial University of Newfoundland

[2006]

The appellant was a university student taking courses toward her goal of being admitted to the School of Social Work and becoming a social worker. As a result of a missing footnote to her term paper, professor B speculated that the case study attached as an appendix might be a personal confession to having sexually abused children (a "cry for help"). In fact the case study had been taken from a textbook listed in the bibliography attached to the term paper. B also suspected the term paper itself to be plagiarized. She wrote a letter to the appellant raising the issue of plagiarism, but did not mention to the appellant her concerns about suspected child abuse or request an explanation regarding the appendix. B later took her concerns to R, the Director of the School of Social Work, who, without seeking an explanation from the appellant, sent a "suspected ill treatment" report to the Child Protection Services ("CPS"). Consequently, unbeknownst to the appellant, the suggestion that she was a suspected child sex abuser was discussed amongst three university professors, communicated to the RCMP, and disclosed to a minimum of ten social workers in several communities, many of whom knew the appellant through her summer employment and one of whom was her boyfriend’s sister. More than two years after the initial report a CPS staff worker belatedly sought a meeting with the appellant where, for the first time, the appellant learned of the long standing "report". She delivered the relevant textbook to CPS the next day. It was immediately obvious to CPS that the appendix had been copied from the textbook listed in the bibliography and was not in the least autobiographical. By letter of September 13, 1996, CPS acknowledged that "When explored it was immediately clear that the information did not relate to you. Rather, the information provided was an excerpt from a book."

The appellant then sued the respondents complaining that their actions "combined to put in motion a series of events that would forever shape the course of [her] future by affecting her reputation in the community, her ability to complete her education and by reducing her income earning capacity". A jury found the University’s treatment of the appellant to be negligent and further found that as a result of this negligence her chosen career prospects had been destroyed; it awarded $839,400 in damages, including $430,000 in non pecuniary damages. A majority of the Court of Appeal set aside the jury award, concluding that the action was barred by s. 38(6) of the Child Welfare Act, which provided that an action did not lie against an informant of ill treatment against a child "unless the making of the report is done maliciously or without reasonable cause".

There was evidence before the jury capable of establishing all the elements of the tort of negligence. In the present case, proximity was not simply grounded in a misguided report to CPS but was rooted in the broader relationship between the University’s professors and their students, which gave rise to a duty of care. The standard of care that ought to be met by professors in respect of their students required them to take the necessary care to get their facts straight before taking a potential career ending action. Here, both B and R failed to seek an explanation from the appellant. In light of the evidence, it was open to the jury to conclude that their behaviour fell markedly short of the standard of care professors are required to meet in respect of their students. There is no basis for an appellate court to intervene with the jury’s findings in this respect. [27-43]

Section 38(6) does not bar the appellant’s action. Under s. 38(1), information that a child "may be" in danger or in need of protection suffices to trigger the duty to report. The respondents were not obliged to conduct their own investigation of the suspected abuse, nor were they required to have reasonable cause to believe abuse had in fact occurred before making a report. They were, however, obliged to have reasonable cause to make a report to CPS, i.e. to possess information that CPS reasonably ought to be asked to look into, even if it turned out to be misinformation. It is the absence of reasonable cause even to make a report that lay at the heart of the appellant’s allegation of negligence. [34] [49]

Section 38(6) offers no protection to the respondents because the case study contained in the appendix was not information that a child was in danger or in need of protection from the appellant. So far as the respondents were concerned, its date and authorship were simply unknown. There was nothing that tied the experiences it related to the appellant. R acted on nothing more than speculation and conjecture. It appears the jury concluded that he must have known that simply making a report would have serious consequences, especially for someone in the appellant’s position, and in particular that a report by a prominent individual such as the Director of the School of Social Work would likely cause the appellant’s name to be placed on the Child Abuse Registry. [42] [51]

There is no basis for an appellate court to interfere with the jury’s award of damages. There were many contingencies built into the damage calculations, all of which were laid out before the jury by the parties. The jury chose to resolve those contingencies in favour of the appellant. It was within their province, as the triers of fact, to do so. The respondents’ argument that the appellant’s claim is really an action for defamation, dressed up as a negligence action, must be rejected. The possibility of suing in defamation does not negate the availability of a cause of action in negligence where the necessary elements are made out. [54-56]

para.[22] The jury heard medical and psychological evidence that the appellant had suffered anxiety, embarrassment, insomnia, paranoia and depression as a result of the allegations against her (both before and after the report) and their repercussions. It also received evidence of economic loss flowing from the University’s termination of her hope of becoming a social worker. The jury went on to award damages as follows: General non-pecuniary $ 430,000 Past loss of income $ 47,000 Future loss of income $ 314,000 Past loss of sick leave $ 13,000 Future loss of sick leave $ 28,000 Cost of future care $ 7,400 Total $ 839,400

para. [53] The appellant called Cara Brown as an expert on damages. She laid out the calculations for four different "scenarios", the choice of which would depend on the version of the facts eventually accepted as correct by the jury. The respondents called no counter evidence to refute the calculations, although in his jury address their counsel urged the jury not to accept the factual assumptions that gave rise to the various calculations:

Don’t judge damages on the fuss that’s being made here, or the length of the trial, or the number of witnesses. It’s very easy to claim huge losses, and it’s very easy to make a mountain out of a mole-hill.

para. [54] There were many contingencies built into the damage calculations, all of which were laid out before the jury by the contending parties. The jury chose to resolve those contingencies in favour of the appellant. It was within their province, as the triers of fact, to do so.

para. [59] Whether we agree with all of the findings the jury was prepared to make in the appellant’s favour on the question of damages is irrelevant. While the issue of causation was strongly contested, there was, in our view, sufficient evidence to permit the jury to find a causal connection between the University’s breach of duty and the damages suffered by the appellant.

para. [67] We find no basis upon which to interfere with the jury’s verdict, and accordingly we would set aside the judgment of the Court of Appeal and restore the trial judgment with costs to the appellant on a party-and-party basis here and in the courts below.