Liptrot v. Vancouver College Limited

2022 BCSC 1851 Liptrot v. Vancouver College Limited

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Liptrot v. Vancouver College Limited, 2022 BCSC 1851 Date: 20221020 Docket: S211242 Registry: Vancouver Between: Darren Liptrot Plaintiff And Vancouver College Limited, St. Thomas More Collegiate Ltd., Edward English, Joseph Burke, Douglas Kenny, Gerard Gabriel McHugh, the Roman Catholic Episcopal Corporation of St. John's, Roman Catholic Archbishop of Vancouver and the Catholic Independent Schools of Vancouver Archdiocese Defendants Before: The Honourable Mr. Justice Coval Oral Reasons for Judgment Counsel for the Plaintiff: J. Fiorante, K.C. R. Mogerman, K.C. L.E. Jones A.L. Johnson Counsel for the Defendant, Vancouver College Limited: B.W. Dixon A.K. Foord S.D. Liesch Counsel for the Defendant, St. Thomas More Collegiate Ltd.: D. Shugarman N. Chang Counsel for the Defendant, Douglas Kenny: S. Clarke Counsel for the Defendant, Gerard Gabriel McHugh: R.W. Cooper, K.C. S. Sodhi Counsel for the Defendants, Roman Catholic Archbishop of Vancouver and the Catholic Independent Schools of Vancouver Archdiocese: J.M. Shore L. von Bloedau Appearing on his own behalf: E. English Place and Dates of Hearing: Vancouver, B.C. September 13, 14 and 23, 2022 Place and Date of Judgment: Vancouver, B.C. October 20, 2022 Table of Contents Introduction.. 4 Background.. 4 Admissibility of the Hughes Exhibits.. 5 Legal Principles. 6 Analysis.

8 Exhibit P.. 9 Exhibit T. 10 Exhibit V.. 11 Exhibit L. 12 Exhibit M.. 12 Exhibit K.. 13 Exhibit N.. 14 Striking Allegations in the NoCC.. 14 Schedule A.. 18 Introduction [1] The defendants apply to exclude certain documents relied on by the plaintiff in his application to certify this claim under the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA]. They argue the documents are inadmissible hearsay. [2] They also apply to strike portions of the amended notice of civil claim as unnecessary under R. 9-5(1)(b) and prejudicial under R. 9-5(1)(c) of the Supreme Court Civil Rules. [3] The application arises in the midst of the plaintiff's certification application. As explained in prior Reasons for Judgment, the certification application was adjourned partway through and will be completed next month. The parties agreed these evidentiary and pleadings applications would be heard and decided during the adjournment. Background [4] The plaintiff seeks to certify this action on behalf of "all students who attended Vancouver College and St. Thomas More, between 1976 and 2013, who claim that they were physically and/or sexually abused by current or former members of the Christian Brothers of Ireland in Canada Ltd." [5] The case relates back to the notorious physical and sexual abuse of students in the late 1970s at the Mount Cashel Orphanage in St. John's, Newfoundland. These events

ultimately led to the criminal convictions of many of the Christian Brothers who ran the orphanage. The Province of Newfoundland conducted a public inquiry into the matter, forming the Royal Commission of Inquiry into the Response of the Newfoundland Criminal Justice System to Complaints led by the Honourable S.H.S. Hughes, which published its report on May 31, 1991 (the "Hughes Report"). [6] The record in this certification hearing indicates that the police investigation of Mount Cashel began in late 1975 and was halted from 1976 until the late 1980s. As a result, the criminal convictions of the Christian Brothers did not occur until well after the fact, in the early 1990s. [7] In the late 1970s and early 1980s, six Christian Brothers (the "Transferees") were transferred from Mount Cashel to the two Vancouver schools. [8] The claim alleges that senior Christian Brothers, including some in charge of the two Vancouver schools, were aware of the Transferees' crimes at Mount Cashel when organizing their transfer and they continued to physically and sexually abuse students while at the Vancouver schools. [9] In the early 1990s, five of the six Transferees were criminally convicted for the abuse they committed at Mount Cashel, including the defendants in this case Brothers English and Kenny. The defendant, Brother Burke, was initially also convicted but his convictions were set

aside by the Supreme Court of Canada. Admissibility of the Hughes Exhibits [10] The documents challenged by the defendants are exhibited to the affidavit of Ms. Sharron Wang, a paralegal at the plaintiff's law firm. They relate to the events at Mount Cashel and are all exhibits taken from the Hughes Report. They include letters, memos and police reports from the 1970s and early 1980s, and transcripts from testimony of three Christian Brothers in the 1980s and early 1990s. [11] Ms. Wang's affidavit also attaches copies or extracts from judicial decisions regarding Mount Cashel, including criminal proceedings against each of the six Transferees. The defendants do not object to the admissibility of these decisions. [12] Towards the end of this evidentiary hearing, the issues narrowed significantly. Initially, the written and oral submissions involved broad principles of hearsay admissibility in interlocutory applications and extensive case law regarding use of secondary reports such as the Hughes Report. [13] By the end, however, the application boiled down to the documents and issues described in the table attached hereto as Schedule A, helpfully prepared by plaintiff's counsel Mr. Johnson during the hearing. [14] I have added to the middle column of his table, in square brackets and bold type, the defendants' ultimate position, in reply, on admissibility of these documents. As

indicated, once the plaintiff specified the purposes for which they sought to use the evidence, the defendants withdrew many of their broad objections. [15] During the hearing, the defendants abandoned their application to strike two documents as inadmissible. First is the Hughes Report itself, because it was clear that the plaintiff did not seek to put the report itself into evidence. [16] Second is the statement of claim in Knowles v. English, Vancouver Registry Action No. S076538. The parties agreed it may be admitted as evidence of the allegations made therein but not for the truth of those allegations. Legal Principles [17] As mentioned, the written and oral submissions were very broad, with the parties referring to many evidentiary principles and cases. I will refer only to those cases that, in my view, are germane given the ultimate positions reflected in Schedule A. [18] As indicated in Schedule A, the plaintiff wishes to rely on the challenged documents to demonstrate some basis in fact for the commonality of certain issues in the case for purposes of CPA, s. 4(1)(c). [19] The "some basis in fact" evidentiary standard does not require the court to resolve conflicting facts or evidence. It reflects that, at certification, the court is "ill-equipped to resolve conflicts in the evidence or engage in the finely calibrated assessments of evidentiary weight": Pro‑Sys

Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, paras. 99-102. [20] This standard was summarized in Sharp v. Royal Mutual Funds Inc., 2021 BCCA 307: [27] The leading authorities establish that although the standard does not entail an assessment of the merits of the action, there must also be more than superficial scrutiny of the sufficiency of the evidence. It is clear that "some basis in fact" must be demonstrated by the plaintiff on an evidentiary basis. Such evidence need not be conclusive or satisfy the civil standard of a balance of probabilities, and the particular level of evidence that will be sufficient is highly fact‑specific. [21] The plaintiff relied on the recent decision of Tietz v. Affinor Growers Inc., 2022 BCCA 307 for three principles: a) hearsay evidence is not presumptively inadmissible in an interlocutory application that does not seek a final order (i.e., finally dispose of the rights of the parties): paras. 89-91; b) hearsay evidence is admissible as an admission against interest of a party to show the admission was made, based on the theory of the adversarial system which does not permit a party to complain about the reliability of his or her own statements: para. 88; and, c) there is a distinction between relying on statements in documents, not as proof of the facts recorded, but as some basis in fact demonstrating the existence of certain

common issues and the availability of evidence: para. 107. [22] The admissibility of hearsay on an interlocutory application comes from Supreme Court Civil Rules, R. 22-2(13), which says an affidavit may contain statements on information and belief (i.e., potential hearsay), if: (a) the source of the information and belief is given, and (b) the affidavit is made (i) in respect of an application that does not seek a final order, or (ii) by leave of the court [23] Defence counsel argued that R. 22-2(13) contemplates an affiant's reliance on hearsay statements as opposed to hearsay documents as the plaintiff's wish to rely on in this case. In my view, however, in these circumstances there is not a material difference between the two situations and counsel provided no authority to suggest there was. [24] The plaintiff relied on the admissibility of documents in a party's possession. They referred to the following from Phipson on Evidence, 13th ed. (1982), para. 21-09, as adopted in Huebner v. PR Seniors Housing Management Ltd., D.B.A. Retirement Concepts, 2021 BCSC 837, para. 165, and Cambie Surgeries Corporation v. British Columbia (Attorney General), 2017 BCSC 861, para. 49: Documents which are, or have been, in the possession of a party will, generally, be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with or

complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e., exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognized, adopted, or acted upon them. [Emphasis in Phipson.] [25] The defendants relied heavily on the principle that, although certification hearings involve the low evidentiary burden of "some basis in fact" described above, the burden must be met by evidence meeting the usual rules of admissibility: Ernewein v. General Motors of Canada Ltd., 2005 BCCA 540, para. 31. [26] They also relied on the principle that, on a certification motion, the court has an important gatekeeping role for admissible evidence which is not to be shirked by simply admitting the evidence and saying all objections will go to weight: Huebner, para.

15. Analysis [27] The plaintiff submitted convincing evidence that the exhibits in question were true copies of the actual documents referred to and included in the Hughes Report. [28] The evidence indicates Exhibits K-N were obtained from the Royal Commission's archives at Memorial University, and Exhibits P-V were reproduced in full within the text of the Hughes Report itself. [29] I agree with plaintiff's counsel that the reliance of the Hughes Report on the documents is strong support for their authenticity, meaning that they are true copies of documents that were created on or around the indicated dates, and written by and sent to the indicated authors and recipients. [30] As an additional indication of their authenticity, I note the defendant Brother McHugh participated in the Royal Commission as a witness and was involved with, or mentioned in, many of the documents. He swore an affidavit in response to this certification application and raised no concerns about the authenticity or accuracy of the exhibits in question. [31] I now address the disputed admissibility issues in the order they appear in the table at Schedule A. Exhibit P [32] Should this police report be admitted to show some basis in fact of the common issue whether the Transferees abused children at Mount Cashel? [33] The report is written and signed by detective R. Hillier on Newfoundland Constabulary

letterhead. It is dated December 18, 1975, with a case file number and subject line of child abuse at the Mount Cashel orphanage. [34] The report summarizes his interviews of boys from Mount Cashel alleging physical and sexual abuse by four of the Transferees. It also describes his interviews of two of the Brothers--including the defendant in this case, Brother English--in which they admit the allegations of abuse. The second Brother was not transferred to the Vancouver Schools. [35] I agree with the defendants that to admit this document as evidence that Common Issue 1 exists is a hearsay purpose--i.e., the truth that the allegations and confessions were made as described, or perhaps even the truth of the allegations and confessions themselves. [36] As with most if not all of the documents in issue, I find the defendants' objections somewhat surprising given that there seems to be strong corroborating evidence in the record on these same issues to which the defendants are not objecting. [37] Regarding the reliability of the allegations and confessions in Exhibit P, as mentioned, the only Transferee the report says confessed was Brother English. In evidence, and not objected to, is his 1991 conviction for 13 counts of assault, gross indecency and assault causing bodily harm at Mount Cashel. As for the truth of the allegations against the other three Transferees mentioned in the

report, the criminal proceedings against each of them are also in evidence, in which two were convicted and the third had his conviction quashed. [38] Turning to the admissibility of this report, in my view it should be admitted as evidence that the allegations and confessions described therein were made at that time. [39] I say this because, first, this is an interlocutory application and therefore hearsay evidence can be admissible. Second, the document is reliably authentic for the reasons I have described. Third, the truth of the allegations and confessions therein are supported by the eventual criminal convictions themselves, which the defendants admit for the truth of their contents. Fourth, Brother English and Brother McHugh are defendants. They both participated in this hearing. Brother McHugh swore an affidavit. Neither of them submitted evidence to cast doubt on this document or the statements in it on which the plaintiff wishes to rely. Fifth, the evidence is not being used to make findings of fact, even for interlocutory purposes, but only to show some basis in fact for the existence of Common Issue 1. Exhibit T [40] Should the memo from Brother Nash to the defendant Brother McHugh be admitted to show some basis in fact of the common issue whether Brother McHugh knew of the conduct at Mount Cashel of the Transferees? [41] In his memo of March 18, 1976, Brother Nash

describes a meeting with the Deputy Minister of Justice, in which it was agreed that: Brother English was not to return to Newfoundland; two of the other Transferees, Brothers Kenny and Short, were to leave Mount Cashel; and a fourth Transferee, Brother Burke, might have to leave. [42] The defendants oppose the document being admitted regarding Brother McHugh's knowledge because this assumes he received it. This is not a hearsay purpose. It does not assume the truth of the statements in the document but only that Brother McHugh received the memo at the time and so was aware of the allegations in it. [43] I find the document admissible for the reasons listed above regarding Exhibit P, which apply even more so since it is being used for a non-hearsay purpose. [44] I would add that Brother McHugh testified before the Hughes Commission. He is a party here, represented by counsel, and swore an affidavit opposing certification. As I read his affidavit, he admits that in late 1975 Brother Nash informed him of the allegations against Brothers English and Ralph, and he describes the steps he took as a result. He says that "at that time" he was not informed of any other allegations of abuse at Mount Cashel. He also says he did not learn of the allegations against Brothers Kenny or Short until around 1989 or 1990. As I read his affidavit, he does not say when he learned of the allegations

against other Brothers at Mount Cashel. [45] In those circumstances, it would be unreasonable to find the document inadmissible as evidence of Brother McHugh's knowledge of its contents at the time, and I admit it for that purpose. Exhibit V [46] Should this letter from Brother Bellows to Brother McHugh be admitted to show some basis in fact for the common issue of Brother McHugh's knowledge of the conduct of the Transferees at Mount Cashel? [47] This letter from Brother Bellows to Brother McHugh, dated May 26, 1979, describes a public leak to the media of an alleged "cover-up" at Mount Cashel. [48] In my view, this is admissible evidence regarding Brother McHugh's knowledge at the time for the same reasons as Exhibit T. It is not being tendered for a hearsay purpose, and in his affidavit Brother McHugh could have disputed receiving the document but did not. Exhibit L [49] Should this police report be admitted to show some basis in fact for the common issue whether Brother Burton abused children at Mount Cashel and of Brother McHugh's knowledge of this conduct? [50] This is a Royal Newfoundland Constabulary Report from 1982, stating Brother Burton's confession of sexual abuse at Mount Cashel. It says "His superiors in the Congregation are fully aware of his involvement with [name redacted] and at the conclusion of any criminal prosecution he will be re-assigned to another area

of Canada." [51] I agree with the defendants that to admit it as evidence that Common Issues 1 or 1(a) exist is a hearsay purpose--i.e., the truth of the statements that Brother Burton confessed and his superiors were aware. [52] The reasons in R. v. Burton, Supreme Court of Newfoundland and Labrador, Trial Division, June 30, 2006, indicate Brother Burton confessing to sexual misconduct with five students from Mount Cashel. [53] For the same general reasons as I have listed above, as well as Brother Burton's criminal confession, in my view the report should be admitted as evidence of Brother Burton's abuse and Brother McHugh's knowledge, to show some basis in fact for the existence of Common Issues 1 and 1(a). Exhibit M [54] Should this transcript of sworn testimony from Brother Bellows be admitted as some basis in fact for the common issue of whether Brother McHugh knew of the conduct of the Transferees at Mount Cashel? [55] This is a transcript of Brother Bellows' testimony in the criminal trial of Brother Burton in Newfoundland in 1982, exhibited to the Hughes Report. At the time of the deposition, Brother Bellows was a director of both Vancouver Schools. His testimony indicates his awareness of the allegations against Brother Burton and also his description of immediate action being taken by the authorities at Mount Cashel. [56] The defendants oppose this as evidence of

what Brother McHugh knew about the abuse at Mount Cashel at that time. [57] I note that I do not see any clear statements in the document about Brother McHugh's knowledge, though I may have missed them. If there are such statements in the document, then I agree with the defendants that the plaintiff seeks to use the document for a hearsay purpose, i.e., the truth of what Brother Bellows says about Brother McHugh's knowledge of Brother Burton's crimes. [58] I find it admissible for this purpose for the reasons listed above regarding Exhibit P and particularly because Brother McHugh is a party who has had an opportunity to address these issues. Exhibit K [59] Should this transcript of testimony from Brothers McHugh and Bellows be admitted as some basis in fact for the common issue of what Brother McHugh knew about the conduct of the Transferees? [60] This exhibit is an electronic copy of Brother McHugh and Brother Bellows' testimony at the Royal Commission. [61] During the hearing, plaintiff's counsel advised they rely on it only for Brother McHugh's evidence that he reported the sexual abuse at Mount Cashel to Superior General Kelty, in Rome, while Mr. Kelty was President and a director of Vancouver College (positions he held from 1973-1978). [62] The defendants do not oppose its admissibility on that basis. Exhibit N [63] Should this transcript of sworn testimony from Brother

Nash in 1990 in the Hughes Report be admitted for some basis in fact for the common issue of what Brother McHugh knew of the conduct of the Transferees while at Mount Cashel? [64] In the transcript, Brother Nash describes advising Brother McHugh of the allegations at Mount Cashel and Brother McHugh's instructions to interview Brothers Ralph and English about the allegations. [65] The defendants oppose this being accepted as evidence of what Brother McHugh knew about the abuse at Mount Cashel at that time. [66] I agree with the defendants that this would be to use the transcript for a hearsay purpose--i.e., the truth of what Brother Nash says he discussed with Brother McHugh. [67] In my view, for the general reasons listed above, the report should be accepted as admissible for purposes of showing some basis in fact for the existence of Common Issue 1(a). I would add that, as mentioned, Brother McHugh's affidavit admits his knowledge of the allegations against Brothers Ralph and English. Striking Allegations in the NoCC [68] The defendants apply to strike portions of paras. 15, 28, 35, 38 and 42 of the amended notice of civil claim (the "Claim") as unnecessary under R. 9-5(1)(b) and prejudicial under R. 9-5(1)(c). [69] Rule 9-5(1)(b) and (c) says: Scandalous, frivolous or vexatious matters (1) At any stage of a proceeding, the court may order to be struck out or amended the whole

or any part of a pleading, petition or other document on the ground that (b) it is unnecessary, scandalous, frivolous or vexatious, (c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, [70] The challenged excerpts describe the graphic details of the sexual and physical abuse perpetrated at Mount Cashel by five of the six Transferees before they came to the Vancouver Schools. The details are direct quotes from findings against them in their criminal trials in the early 1990s. [71] The plaintiff says the details are relevant to the claims of systemic abuse of the students at the two Vancouver Schools and for punitive damages. [72] The defendants say that the impugned portions go far beyond a concise statement of the relevant material facts giving rise to the plaintiff's claims. They say that the material facts are that the five Transferees were convicted of serious physical and sexual abuse of boys at Mount Cashel. They say these material facts are in the pleadings and not objected to. [73] The defendants rely on Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc., 2021 BCCA 362, paras. 44-49 [Mercantile], where Justice Voith said: [44] Nevertheless, none of a notice of claim, a response to civil claim, and a counterclaim is a story. Each pleading contemplates and requires a reasonably disciplined exercise that is

governed, in many instances in mandatory terms, by the Rules and the relevant authorities. Each requires the drafting party to "concisely" set out the "material facts" that give rise to the claim or that relate to the matters raised by the claim. None of these pleadings are permitted to contain evidence or argument. [45] What constitutes a material fact is well understood. Material facts are the elements essential to formulate a claim or a defence. In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Justice Binnie said: [54] A cause of action has traditionally been defined as comprising every fact which it would be necessary for the plaintiff to prove, if disputed, in order to support his or her right to the judgment of the court . Establishing each such fact (sometimes referred to as material facts) constitutes a precondition to success. [46] This Court adopted a similar definition of material facts in Young v. Borzoni et al, 2007 BCCA 16 at para. 20: [20] "Material fact" is defined in Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc., 2005 BCSC 371 at paragraph 9 as, "one that is essential in order to formulate a complete cause of action. If a material fact is omitted, a cause of action is not effectively pleaded." [47] In Jones v. Donaghey, 2011 BCCA 6 at para. 18, the Court said: [18] Thus, a material fact is the ultimate fact, sometimes called

"ultimate issue", to the proof of which evidence is directed. It is the last in a series or progression of facts. It is the fact put "in issue" by the pleadings. Facts that tend to prove the fact in issue, or to prove another fact that tends to prove the fact in issue, are evidentiary or "relevant" facts. [48] Most recently, in Muldoe v. Derzak, 2021 BCCA 199 at para. 31, this Court said: [31] A material fact is one that is essential to formulate a cause of action. If supporting material facts are omitted, a cause of action is not effectively pleaded . [49] The judge's assertion that a pleading can contain the evidence, as opposed to the material facts, that a party may be entitled to establish at trial is an error in principle. In saying this, I recognize that there are times where the distinction between what constitutes a material fact and what constitutes evidence may be blurred and difficult to apply. There are also times when, as a practical matter, some limited evidence may be necessary to make a pleading more comprehensible. But the distinction between what constitutes evidence and what constitutes a material fact is important. Furthermore, what evidence may be relevant at trial and what material facts are relevant to a pleading are two different things. This distinction is expressly identified in the Rules and in the relevant case law, and it is central to a proper

pleading. [74] I agree with the defendants that the material facts in the challenged paragraphs are that, in the early 1990s, these five Transferees were convicted of serious physical and sexual abuse of numerous boys at Mount Cashel during the 1970s. As mentioned, those material facts are pleaded and not challenged by the defendants. [75] I agree with the defendants that the graphic details of the abuse are not material facts, but potential evidence that would go towards proving them. As stated in Mercantile, this is an important distinction that should be maintained. [76] In my view, it is particularly important in this case because the graphic conduct described is not yet proven to have occurred at the Vancouver schools and the references are potentially seriously harmful to the schools. [77] I therefore agree with the defendants that the challenged excerpts from the pleadings should be removed. I see no prejudice to the plaintiff's case from that removal. In particular, I see no way in which this impedes the claims of systemic abuse or for punitive damages. "Coval J." Schedule A Exhibit Description Admissibility and Possible Forms of Reliance Relevant Common Issue(s) P Police report from Newfoundland in December 1975 about child abuse at Mount Cashel. Fact of statements being made is evidence that Common Issue 1 exists. [Opposed] The existence of Exhibit P is evidence of

the availability of records to determine Common Issue 1 at the common issues trial. [Accepted] Common Issue 1: Did English, Kenny, Short or Burke abuse children in his care at the Mount Cashel orphanage? S Letter from the defendant Mr. McHugh to the deputy Minister of Justice in Newfoundland in January 1976 reporting on actions taken in response to the allegations of abuse, including removing the defendant Mr. English from Mount Cashel. The existence of Exhibit S is evidence of the availability of records to determine Common Issues 1(a) and 3(a) at the common issues trial. [Accepted] Common Issue 1(a): What knowledge did the defendant McHugh have of the conduct of the Mount Cashel Six? Common Issue 3(a): Did McHugh authorize, approve, endorse or ratify the transfer of members of the Mount Cashel Six? Q Police report about child abuse at Mount Cashel. The existence of Exhibit Q is evidence of the availability of records to determine Common Issues 1 and 9. [Accepted] Common Issue 1: Did English, Kenny, Short or Burke abuse children in his care at the Mount Cashel orphanage? Common Issue 9: Did any of the English, Burke or Kenny breach the required standard of care, if per Common Issue 8 it included an obligation to warn about the risk of harm to students posed by other Christian Brothers? T Memo from Brother Nash to the defendant Mr. McHugh regarding the abuse at Mount Cashel and

his meeting with the Deputy Minister of Justice. The fact of the statement being made is evidence that Common Issue 1(a) exists. [Opposed] The existence of Exhibit T is evidence of the availability of records to determine Common Issue 1(a) at the common issues trial. [Accepted] Also admissible as a document in possession of Mr. McHugh which can show the state of his knowledge. [Opposed] Common Issue 1(a): What knowledge did McHugh have of the conduct of the Mount Cashel Six? U Letter from Mr. McHugh to the defendant Mr. Kenny, assigning him to Vancouver College. At this time, Mr. McHugh was a director of both VCL and STMCL. [Not disputed] The fact of the statement being made is evidence that Common Issues 1(a), 1(e), 1(f) and 3(e) exist. [Accepted] The existence of Exhibit U is evidence of the availability of records to determine common issues 1(a), 1(e), 1(f) and 3(e) at the common issues trial. [Accepted] Common Issue 1(a): What knowledge did McHugh have of the conduct of the Mount Cashel Six? Common Issue 1(e): What knowledge did the VCL have of the conduct of the Mount Cashel Six? Common Issue 1(f): What knowledge did STMCL have of the conduct of the Mount Cashel Six? Common Issue 3(e): Did VCL authorize, approve, endorse or ratify the transfer of any of the Mount Cashel Six? R Letter from the Deputy Minister of Justice to a local police chief in January 1977, telling the

police chief that in light of the action taken by the Christian Brothers, no further police action is needed. Provides context to other evidence and events, such as the transfers of members of the Mount Cashel Six and the delay before their criminal prosecutions and convictions. [Accepted] V Letter from Mr. Bellows to the defendant Mr. McHugh in Rome in May 1979, informing him that the "incident" at Mount Cashel involving 3 Brothers has become public knowledge. At this time, Mr. Bellows was a director of both VCL and STMCL. [Not disputed] The fact of the statement being made is evidence that Common Issues 1(e) and 1(f) exist. [Accepted for Mr. Bellows but not for Mr. McHugh] The existence of Exhibit V is evidence of the availability of records to determine Common Issues 1(e) and 1(f) at the common issues trial. [Accepted] As a document in the possession of Mr. McHugh, the fact of the statement being made may be relied upon as evidence of his state of knowledge. [Opposed] Common Issue 1(e): What knowledge did the VCL have of the conduct of the Mount Cashel Six? Common Issue 1(f): What knowledge did STMCL have of the conduct of the Mount Cashel Six? L Police report in October 1982 regarding one of the Mount Cashel Six, Mr. Burton. The fact of the statement being made is evidence that Common Issues 1 exists. [Opposed] The existence of Exhibit L is evidence of the availability of

records to determine Common Issue 1 at the common issues trial. [Accepted] The fact that a statement is made about Mr. Burton's superiors in the Congregation (i.e., Brother McHugh) knowing of his relationship with W.N. and planning to reassign him elsewhere is also evidence that Common Issue 1(a) exists and that records are available to resolve it. [Opposed] Common Issue 1: Did Burton abuse children in his care at the Mount Cashel orphanage? Common Issue 1(a): What knowledge did McHugh have of the conduct of the Mount Cashel Six? M Transcript of sworn testimony from Mr. Bellows in November 1982. At this time, Mr. Bellows was a director of both VCL and STMCL. [Not disputed] The fact of the statement being made is evidence that Common Issue 1(a) exists. [Opposed] The existence of Exhibit M is evidence of the availability of records to determine Common Issue 1(a) at the common issues trial. [Accepted] Also admissible under Rule 12-5(54) as prior sworn testimony of a deceased witness. [Accepted if Mr. Bellows is deceased] Common Issue 1(a): What knowledge did McHugh have of the conduct of the Mount Cashel Six? Common Issue 1(e): What knowledge did the VCL have of the conduct of the Mount Cashel Six? Common Issue 1(f): What knowledge did STMCL have of the conduct of the Mount Cashel Six? K Recorded sworn testimony of the defendant McHugh (December 1989) and the Mr. Bellows (January

1990). The fact of the statements being made is evidence that Common Issue 1(a) exists. [Accepted] The existence of Exhibit K is evidence of the availability of records to determine Common Issue 1(a) at the common issues trial. [Accepted] Mr. Bellows' testimony is also admissible under Rule 12-5(54) as prior sworn testimony of a deceased witness. [Accepted if Mr. Bellows is deceased] Common Issue 1(a): What knowledge did the defendant McHugh have of the conduct of the Mount Cashel Six? N Transcript of sworn testimony by Mr. Nash in May 1990. At this time, Mr. Nash was a director of VCL. [Not disputed] The fact of the statements being made is evidence that Common Issues 1(a) and 1(e) exist. [Accepted for 1(e). Opposed for 1(a)] The existence of Exhibit N is evidence of the availability of records to determine Common Issues 1(a) and 1(e) at the common issues trial. [Accepted] Also admissible under Rule 12-5(54) as prior sworn testimony of a deceased witness. [Accepted if Mr. Bellows is deceased] Common Issue 1(a): What knowledge did McHugh have of the conduct of the Mount Cashel Six? Common Issue 1(e): What knowledge did the VCL have of the conduct of the Mount Cashel Six?