Telford v. School District No.42 (Maple Ridge & Pitt Meadows)

2018 BCSC 2165 Telford v. School District No.42 (Maple Ridge & Pitt Meadows)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Telford v. School District No.42 (Maple Ridge & Pitt Meadows), 2018 BCSC 2165 Date: 20181206 Docket: S166066 Registry: Vancouver Between: Darren Ernest Telford Plaintiff And School District No. 42 (Maple Ridge & Pitt Meadows) and Principal John Doe Defendant Before: The Honourable Mr. Justice Voith Reasons for Judgment Counsel for the Plaintiff: K. R. Hamilton K. Campbell (A/S) Counsel for the Defendant: R. J. Harper D.M. Peck Place and Date of Trial: Vancouver, B.C. April 16 - 19 & April 23 - 27, 2018 April 30, 2018 - May 04, 2018 May 7- 9, 2018, July 24 & 30, 2018 August 3, 8, 9 & 10, 2018 Place and Date of Judgment: Vancouver, B.C. December 06, 2018 Table of Contents Overview.. 3 Some Threshold Legal Issues. 4 i) Burden of Proof and Standard of Proof 4 ii) Credibility, Reliability and Findings of Fact 5 iii) The Passage of Time and the Evidence of Witnesses who were Children at the Time of the Events in Question. 7 General Background.. 9 The Plaintiff's Evidence in Relation to Allegations of Abuse. 11 The Other Lay Witnesses that were Called on Behalf of the Plaintiff. 15 i) Matthew.. 16 ii) Mr. Telford Senior 17 iii) The Evidence of Mr. Labelle, Ms. Stuart and Mr. Ealey. 18 iv) The Evidence of Mr. Olsen. 22 The Evidence Adduced by the Defendants. 23 Weighing the Evidence of the Plaintiff and of the Witnesses Called on

Behalf of the Plaintiff. 25 The Plaintiff's Evidence. 25 Matthew's Evidence. 28 Mr. Telford Senior's Evidence. 29 The Evidence from the Other Witnesses for the Plaintiff 32 Weighing the Evidence of the Defendants' Witnesses. 34 Further Difficulties with the Plaintiff's Case. 34 i) The Frequency with which Mr. Duff is Alleged to have been on School Property. 35 ii) The Absence of any Objective Record that Relates to any Conduct on the Part of Mr. Duff or to any Complaint by the Plaintiff from 1991 to 1993. 37 iii) The Change of School Issue. 40 Conclusion.. 43 Overview [1] The Plaintiff, Mr. Darren Telford, is presently 32 years old. He alleges that he was sexually abused by Mr. Duff, a neighbour, when he was a young boy. Specifically, he alleges that he was sexually abused or assaulted before he went to kindergarten when he was four or five years old. He further alleges that the abuse continued from the time he first started to go to school at Glenwood Elementary School in 1991 through to when his parents moved him from Glenwood Elementary to another elementary school in 1994. He alleges that he was repeatedly abused during the school day and on school property. [2] Mr. Telford's claim as against the Defendants, School District No. 43 (Maple Ridge and Pitt Meadows School District) (the "School District") and an unnamed principal, is brought both in negligence and as a breach of

fiduciary duty. [3] These causes of action each have various constituent elements. A claim in negligence, for example, requires that a plaintiff establish the existence of a duty of care on the part of the defendant, a breach of that duty of care, causation, and damage or loss. Each of these various elements of a negligence claim was addressed in the lay and expert evidence that was advanced by the parties. The same is true of the Plaintiff's claim for breach of fiduciary duty. [4] The central question or issue that arose at trial, in respect of both causes of action, was, however, factual. That question was whether Mr. Telford was able to establish, on the balance of probabilities, that he was sexually abused while he was a student at Glenwood Elementary and while he was in the care of the school. On account of the conclusions I have arrived at in relation to that threshold question, I do not consider that I need to address the remainder or balance of the legal and factual issues that were raised at trial. On account of the importance of that issue, however, I have described and weighed the evidence of the witnesses and, the Plaintiff's witnesses in particular, in more detail than I normally would. Some Threshold Legal Issues [5] There are two important threshold legal issues. i) Burden of Proof and Standard of Proof [6] It is common ground that the burden of proof in this

case lies with the Plaintiff. [7] The Defendants argue that in cases of historic sexual abuse, the evidence offered in proof must establish the allegations with a degree of probability which is "commensurate with the occasion". This was in the past often described as the "clear and cogent standard" in which there was a need to subject evidence to greater scrutiny where it was offered as proof of allegations which carried serious consequences. [8] Thus, in J.L.M. v. P.H. (1997), 31 B.C.L.R. (3d) 155 (S.C.), in a civil sexual abuse claim, Justice Stromberg-Stein, at 189-190, said: The civil standard of proof on a balance of probabilities is a flexible standard that enables Courts to require a higher degree of probability or persuasion in a case involving allegations of sexual, physical and emotional abuse made by a child against a parent. The seriousness of the allegations and the gravity of the consequences requires a high degree of probability that the allegations are true . [9] She relied on the statement of Lord Denning in Bater v. Bater, [1950] 2 All E.R. 458 (C.A.) at 459: The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends upon the subject matter. A civil court, when considering a charge of fraud, will naturally require a higher standard of probability than that which it would require

considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion. [10] The need to calibrate the standard of proof to a higher degree of probability, commensurate with the occasion, was also recognised in R.C. v. McDougall [F.H. v. McDougall], 2007 BCCA 212 citing M.B. v. British Columbia, 2001 BCCA 227 and W.R.B. v. Plint, 2001 BCSC 997, both of which were cases of historical sexual abuse. [11] I do not, however, accept the foregoing submission of the Defendants and consider that the authorities they relied on, and that I have referred to, have been overtaken by more recent authority. In F.H. v. McDougall, 2008 SCC 53, Justice Rothstein, for the Court, said: 39. I summarize the various approaches in civil cases where criminal or morally blameworthy conduct is alleged as I understand them: (1) The criminal standard of proof applies in civil cases depending upon the seriousness of the allegation; (2) An intermediate standard of proof between the civil standard and the criminal standard commensurate with the occasion applies to civil cases; (3) No heightened standard of proof applies in civil cases, but the evidence must be scrutinized with greater care where the allegation is serious; (4) No

heightened standard of proof applies in civil cases, but evidence must be clear, convincing and cogent; and (5) No heightened standard of proof applies in civil cases, but the more improbable the event, the stronger the evidence is needed to meet the balance of probabilities test. (4) The Approach Canadian Courts Should Now Adopt 40. Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected for the reasons that follow. See also Wanson (Bristol) Development Ltd. v. Sahba, 2018 BCCA 260 at para. 29 and Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 at paras. 35-36. [12] Accordingly, I consider that the appropriate standard of proof is proof on a balance of probabilities. ii) Credibility, Reliability and Findings of Fact [13] This case very much turns on the credibility and reliability of the various witnesses who were called and, in particular, the witnesses who gave evidence on behalf of

the Plaintiff. [14] The distinction between reliability and credibility, each of which is relevant to the assessment of a witness's evidence, was explained in Regina. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.): 33. Testimonial evidence can raise veracity and accuracy concerns. The former relates to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony [15] More recently, in R. v. H.C., 2009 ONCA 56, Justice Watt, for the court, said: 41. Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may

give unreliable evidence: R. v. Morrissey (1995), 22 O R. (3d) 514, at 526 (C.A.). [16] In assessing a witness's credibility, the following comments from R. v. Langlet, 2013 BCSC 2274 are helpful: 28. The accepted factors that bear on credibility include internal consistency of a witness's testimony, consistency over time, corroboration or external consistency with other evidence, any interest the witness may have in testifying including motive to lie, whether the witness is independent, the presence or absence of an oath or affirmation, and prior criminal convictions where relevant.

31. I note that the consistency of a witness's testimony is an important factor in an analysis of the credibility of a witness, both internally and externally. Can the witness provide the same account at different times? Can the witness provide consistent answers as he or she is asked questions about portions of their testimony or particular aspects of it? Similarly, is a witness's testimony externally consistent? Do aspects of the witness's testimony correspond with testimony of other witnesses (absent evidence of collusion) or other real evidence? Is the account provided by the witness a plausible one? Does it accord with common sense? [17] Further guidance was provided in Bradshaw v. Stenner, 2010 BCSC 1398, aff'd 2012 BCCA 296, at para. 186, where the Court said: Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his

testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya at para. 356). [18] In weighing questions of credibility, courts will also frequently rely on the guidance provided by Justice O'Halloran in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) where he said, at 357: The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those

conditions. iii) The Passage of Time and the Evidence of Witnesses who were Children at the Time of the Events in Question [19] In this case, making the necessary findings of fact, and the determinations of credibility and reliability in relation to numerous witnesses, is complicated by several factors. The Plaintiff's mother, who played a central role in the events in question, died in 2002. The principal at Glenwood Elementary from 1991-1993, Mr. Sikora, also passed away. The evidence at trial establishes that other individuals who were supervisors at Glenwood Elementary, in the years in question, have since passed away. Many of the records of the School District, as a result of the passage of time, are no longer available. The same may be true of certain police records. [20] Still further, the passage of time necessarily affects the reliability of a witness's memory; R. v. G.L., 2013 ONSC 7876 at para. 74; R. v.R.E.L., 2013 ONSC 7512 at para. 27 and R. v. R.L., 2011 ONSC 697 at para.

34. In this case, more than 25 years have elapsed since many of the events that are alleged to have occurred took place. [21] Further considerations are relevant. Several of the Plaintiff's witnesses, including the Plaintiff and his brother, were young children at the time. This reality adds another level of complexity. Numerous cases confirm that the evidence and memory of children have to be addressed and weighed differently. It is often wrong to apply adult tests for credibility and reliability to the evidence of children; R. v. W.(R.) [R.W.], [1992] 2 S.C.R. 122 at 132-133; R. v.C.C.F., [1997] 3 S.C.R. 1183 at paras. 19 and 48 and R. v. F.J.C., 2018 BCSC 1443 at paras. 41-42. [22] In this case, the Plaintiff and his brother, as well as several other witnesses who gave evidence on behalf of the Plaintiff, are now adults. Nevertheless, some of these issues and concerns remain. Thus, in W.(R.), Justice McLachlin, as she then was, said at 134: Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet

with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [23] In R. v. D.L., 2017 ONSC 6481, Justice Bielby said: 129. In cases involving historical acts of sexual abuse particular caution and scrutiny are called for in approaching the reliability of evidence, including the memories of childhood impressions (para. 38) (see also R. v. H.P.S. [2014] O.J. No. 748, para. 38).

130. Memories become increasingly frail over time. "Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred" (para. 38). 134 It is proper and logical to bear in mind that the ability of a child to recall events with precision, even when testifying as an adult, may not be the same as with other witnesses (R. v. C. (S.), [2003] O.J. No. 4100 (Ont. S.C.J.) , para. 3). [24] I am mindful that the cases I have referred to generally arise in the criminal context. That does not, however, detract from the importance of the concerns or cautions that they express. [25] One last consideration is relevant. In this case, the Plaintiff called Dr. Koch, a clinical psychologist, to address aspects of the Plaintiff's mental health and to opine on how the various conditions that the Plaintiff now struggles with would likely, in his view, have been caused by his childhood sexual abuse. In Dr. Koch's cross-examination, he also addressed issues relating to the childhood memories of individuals and the reliability of those memories. [26] Dr. Koch, whose evidence on these matters I accept, said that childhood memories tend to be fragmentary and he confirmed that such memories can be reconstructive in the sense that people reconstruct what occurred based on what they

believe happened. Still further, he confirmed that children with less than a grade 6 reading level, the issue being one of language sophistication, are less likely to remember things or events. He acknowledged, however, that this broad statement can be affected by many variables. By way of example, Dr. Koch said that what the Plaintiff now said about his being depressed in elementary school would generally be considered unreliable. General Background [27] I have first sought to describe various general facts that are not contested. The Plaintiff grew up in Maple Ridge, British Columbia. At the time of the alleged incidents, he lived on Glenwood Avenue together with his brother, Matthew, and his parents. In order to avoid confusion, I have referred to Mr. Darren Telford as the Plaintiff, to his brother as Matthew and to his father as Mr. Telford Senior. Matthew is three years older than the Plaintiff. [28] The Telford home was immediately adjacent to, and separated by a fence from, Glenwood Elementary. Mr. Duff, likely in his 60s at the time, also lived on Glenwood Avenue. He and his wife lived immediately across the street from the Telford home. The Duff property and home were also adjacent to Glenwood Elementary and were separated from the school by a fence. Mr. Duff had no formal or other relationship with the Defendant School District. [29] Some description of the physical

layout of Glenwood Elementary is necessary in order to make sense of the evidence of the Plaintiff and of other witnesses. The main entrance to Glenwood Elementary was from the west via Glenwood Avenue. There was a parking lot immediately in front of the school and a further parking lot that was slightly off to the south. The school was physically placed almost up against the northern boundary of the school property though there was a narrow area between the physical structure of the school and the fences that separated school property from other properties. [30] Immediately to the east of the physical structure of the school was a large playground (the "Playground"). Further to the east, as well as to the south, were large grass playfields. [31] The whole of the school property was fenced in. Though the evidence on this issue is not entirely consistent, I am satisfied that there were three breaks or openings in this fence. The first was to the west at the main entrance to the school. The second was a small gate on the far eastern boundary of the school. There was a housing complex at that end of the school and children would come to school through that gate. Other persons would also, at times, take a shortcut through the school's property. [32] Finally, there was a gate on the south fence in an area that was somewhat forested with bushes and trees. Beyond that green space was

more housing, a church and a liquor store. Once again, children would come to school through the south gate and others would also, from time to time, use the gate to cut through the school's property. The Plaintiff's Evidence in Relation to Allegations of Abuse [33] In his direct evidence, the Plaintiff said that, in or about June 1991, and before he was a kindergarten student at Glenwood Elementary, he was riding his bike by his home when Mr. Duff offered to oil the chain on his bike. He went over to Mr. Duff's home. Mr. Duff had the Plaintiff sit on his lap and he then put his hands down the front of the Plaintiff's pants. The Plaintiff said that he "freaked out", went home and told his mother. He recalled going to the police station with his mother. [34] Importantly, there are police records from August 1991 which indicate that Mrs. Telford reported the suspected sexual touching to the police in August 1991 and that the police interviewed both the Plaintiff and Mr. Duff thereafter. No charges were laid. [35] The Plaintiff entered kindergarten on September 3, 1991. He testified that from the time he was in kindergarten through to when he was in grade 2, when his parents transferred the two Telford boys from Glenwood Elementary midway through the school year, he was repeatedly sexually touched and abused by Mr. Duff. [36] This abuse is alleged to have occurred on multiple

occasions and in multiple locations on the property of Glenwood Elementary over the course of several years. The Plaintiff generally tended to describe the sequence in which they occurred. Likely in kindergarten and in later years a "bunch of times", and more than "three times", Mr. Duff would approach the Plaintiff at the top of the upper parking lot of the school, near the Playground, and walk him off of school grounds to the backyard of his home. This would occur, the Plaintiff said, at recess or at lunchtime. Mr. Duff would sit in a lawn chair and put his hands down the Plaintiff's pants, stroke the Plaintiff's penis and he would sometimes put his finger in the Plaintiff's anus. [37] On other occasions when the Plaintiff was on the school's fields, either with friends or by himself, Mr. Duff would approach him and lead him through the gate and into the wooded area to the south of the school. Mr. Duff would again put his hands down the Plaintiff's pants and put his finger in his anus. [38] The Plaintiff said that when he was in grade 1, Mr. Duff approached him, likely during the lunch hour, and while he was in the Playground area. There were other children around. Mr. Duff led him off to the narrow out of bounds area that was to the north and that was between the school and the fence. Mr. Duff put his hands down the Plaintiff's pants and commented that "it's getting bigger".

This was something that Mr. Duff is alleged to have said on several occasions. [39] Glenwood Elementary had an annual "Rainy Day Festival". This was an event that was held in or about February of each year, that was organized by the school's Parent Advisory Council and that was intended to raise money and to support school activities. There were various games and events held in different rooms of the school and in the school's gym. The Plaintiff said that he believed the next incident of abuse was possibly at the Rainy Day Festival when he was in grade 1 or grade 2. He saw Mr. Duff talking to others in the gym. Mr. Duff approached the Plaintiff in the gym, led him to a hallway and molested him. [40] The Plaintiff next recalled Mr. Duff approaching him when he was in grade 2 and when he was playing in the grass playfields over the lunch hour. Mr. Duff led him off of the school grounds to the south, where there was a treed and bushy area, and where a homeless person, who was described as "Pete the Bum" by a number of persons throughout the trial, sometimes lived. The Plaintiff said that he was taken to this area by Mr. Duff "a lot" when he was in grade 2. It was always over the lunch hour. There were always other children around who were playing. "the field was full of kids". The Plaintiff believed that there were teachers around. Mr. Duff was said to "always be there" though not

on every day. The Plaintiff would either be alone or with other children when Mr. Duff would approach and walk him off of the school's property and in to the bushes. Mr. Duff would again touch him and put a finger in his anus. [41] The Plaintiff recalled other instances in grade 2 where Mr. Duff approached him on the school's grounds, then took the Plaintiff to his backyard and molested him. This too occurred multiple times. These events would occur during the lunch hour or after school. [42] On another occasion, that may have occurred in grade 1, the Plaintiff went to Sports Day. This too was an annual event where the families of the students of the school could attend at the school and watch the children participate in various contests or endeavours. There were likely hundreds of people about. The Plaintiff says Mr. Duff was present at Sports Day, approached him, took him to a sandbox on the school's grounds and again fondled him. One theme in the Plaintiff's case, that emerged through the evidence of the Plaintiff and other witnesses, was that Mr. Duff appeared at both the Rainy Day Festival and Sports Day in some sort of official capacity or as a volunteer. [43] The Plaintiff said that, throughout these various incidents, he felt that he was unable to say no to Mr. Duff. He described himself as submissive. [44] At some point, in grade 2, the Plaintiff said that he had been

sitting on his mother's lap playing pattycake when his mother had asked him about Mr. Duff. The Plaintiff told her that Mr. Duff still touched him. The Plaintiff said that his parents then decided to move from the area and from the school. The family quickly sold their home and the two Telford boys were transferred, mid-year, from Glenwood Elementary to Blue Mountain Elementary. Blue Mountain Elementary was another elementary school in the School District. [45] The Plaintiff gave evidence that, in 1999, both he and his mother were again interviewed by the police. Apparently there was reason to believe that Mr. Duff had abused one or more other children. The police investigated those allegations and, in that context, again interviewed both Mrs. Telford and the Plaintiff. They also interviewed Matthew. Those interviews are important and I will return to them. [46] It is common ground that in the fall of 1999, the police spoke to the then principal of Glenwood Elementary, Mr. Yep. Mr. Yep was informed of an individual who lived near the school and who had been charged with offences against one or more children. Mr. Yep's discussions at that time suggested or confirmed that that individual was Mr. Duff. There was, however, no suggestion that Mr. Duff had done anything to any child on the school's property. [47] Nevertheless, Mr. Yep sent out a letter dated September 23, 1999 to the

parents of the children in the school. A portion of the letter said: It has come to our attention that an adult neighbour living adjacent to Glenwood Elementary has been charged with a number of offences involving children. School staff are aware of the individual. The R.C.M.P. do not feel our students are in any immediate danger. We have been told that this individual has been restricted in his movements as a pre-trial condition. Nevertheless, in the interests of student safety, parents should review safety procedures with their children. [48] Most of the balance of the Plaintiff's detailed and extensive evidence was directed to his difficulties since that time. He struggled in school and was a marginal student. He has struggled to find and hold steady employment. He struggles with depression, panic attacks and anxiety. He has difficulties of various kinds in his personal relationships. He spends limited time with others. He has difficulty or discomfort being around children. He becomes anxious if he sees sex or intimacy on the television. [49] He has historically sought and obtained limited counselling. He has, however, been seeing a counsellor more regularly since 2016 or when this action started, though I do not say the two matters are connected. [50] Much of this evidence was directed to the Plaintiff's claim for general damages, his claim for past and future wage loss and

his cost of care claim. So too was the expert medical and psychological evidence and the evidence of different economists. Aspects of that evidence, directly and indirectly, also relates to the question of whether the Plaintiff was sexually abused. Thus, there was expert evidence at trial which attributed at least some of these difficulties to the Plaintiff having been abused. [51] What that evidence did not address, however, is whether the Plaintiff was abused both before he went to Glenwood Elementary, which the Plaintiff asserts and which is not contested, and thereafter when he was in kindergarten, as well as in grade 1 and 2, at Glenwood Elementary. [52] Even if I were to accept all of the evidence relating to the Plaintiff's ongoing difficulties from the Plaintiff, his family and the witnesses called on his behalf, and I accepted that all of those difficulties were caused by the abuse of Mr. Duff, there is no evidence which attributes the Plaintiff's difficulties to the events that preceded the Plaintiff going to Glenwood Elementary as opposed to the alleged events that followed his attendance at that school. Thus, this evidence does not assist with the central factual questions that I identified at the outset. [53] I have, accordingly, given little or no weight to this evidence insofar as it might inferentially or indirectly support the Plaintiff being abused after he

became a student at Glenwood Elementary. The Other Lay Witnesses that were Called on Behalf of the Plaintiff [54] The Plaintiff called several lay witnesses. I have again focused primarily on those aspects of their evidence that addressed the liability component of the Plaintiff's claim and, in particular, the assertion that the Plaintiff was sexually abused by Mr. Duff while he attended Glenwood Elementary. i) Matthew [55] Matthew, who is three years older than the Plaintiff, recalled Mr. Duff calling the Telford boys to his home. Mr. Duff would give them candy and money and he would fix their bikes. He recalled Mr. Duff tickling his brother, under his shirt and up his legs. These events occurred before the Plaintiff started school. [56] At some point, Matthew was told by his parents to stay away from Mr. Duff though he was not told why. He would no longer go to Mr. Duff's home but he continued to see him on the school grounds and in his yard. Matthew testified that he saw Mr. Duff by the school basketball court, at the back of the school, near the Playground, in the front of the school and by the fence line in the front of the school where there was a bike rack. After school, he would see Mr. Duff near the teachers' parking lot. He said that Mr. Duff would be at the back of the school, where the fields were, roughly two or three times a week and that he would be speaking to

different children of different ages. He would do this during both the lunch hour and at recess. He confirmed that he recalled seeing Mr. Duff at both the Rainy Day Festival and Sports Day. He recalled that, on at least one occasion, Mr. Duff participated in specific games that were held at the Rainy Day Festival. [57] Matthew confirmed that his family changed homes and that he and the Plaintiff were moved from Glenwood Elementary to Blue Mountain Elementary in about February 1994. [58] He also confirmed that, in 1999, when he would have been 15 or 16 years old, both he and his mother gave statements to the police. This was, again, in relation to the concern that Mr. Duff had sexually assaulted or abused other children. He recalled his mother being upset because she had spoken to the police about Mr. Duff in 1991 and because the police had done nothing at the time. ii) Mr. Telford Senior [59] Mr. Telford Senior described his sons in their early years. He recalled that the Plaintiff was an easy child. His memory was that the Plaintiff had no physical or emotional difficulties until after 1991 and when he had first been abused by Mr. Duff. [60] Mr. Telford Senior testified that he first learned of the Plaintiff being abused in about March 1991. He said his wife had told him that the Plaintiff had come home, fallen on the floor, cried and told his mother to "tell Joe to stop

touching me". He said by the time he had come home that night, she had spoken to both the principal of Glenwood Elementary and to the police. [61] Counsel for the Defendants objected to this hearsay evidence. Following a voir dire, and based on a separate set of reasons, I admitted the evidence. I did so primarily on the basis that the threshold reliability of aspects of this evidence was supported by the formal statements that Mrs. Telford had given to the police in 1991. [62] Mr. Telford Senior was under the apparent belief that the events in 1991 had occurred while the Plaintiff attended a preschool at Glenwood Elementary and that, even then, the Plaintiff had been lured by Mr. Duff from school property. [63] Mr. Telford Senior further testified that his wife had said she had been put off by the school and that she had not been taken seriously. He said that the school had told her that it controlled things carefully, that "Joe wouldn't do that" and that the principal had communicated that he wished Mrs. Telford had not spoken to the police. [64] Mr. Telford Senior said that both he and his wife thereafter spoke to the Plaintiff and told him not to let Mr. Duff near him, that he was to scream if he felt threatened and that he was to ride his bike in a different area. They also told Matthew not to go to Mr. Duff's home though they did not tell him why. [65] Mr. Telford Senior

testified that when the Plaintiff was in grade 3, he and his wife learned, from the Plaintiff, that Mr. Duff had continued to abuse him. He said that he and his wife became quite angry and quite vocal and they felt that other mothers should know what was happening. They went to the principal, Mr. Sikora, and told him what they had learned. Mr. Telford Senior said that Mr. Sikora made them "feel like they were crazy". Mr. Telford Senior said that Mr. Sikora insisted that the school carefully controlled what happened on the school's grounds. Mr. Telford Senior said that he also talked to teachers and the principal. He said that, in 1993, his wife again reported these incidents to the police but that no steps were taken by the police and no investigation was undertaken. [66] Mr. Telford Senior said that these events occurred in the latter part of 1993. He and his wife had had enough. They felt the school would do nothing and they felt ostracized. He said "the air was pretty heavy". He and his wife decided they had to move. They sold their home in January 1994, moved in February 1994 and had both boys transferred, mid-year, from Glenwood Elementary to Blue Mountain Elementary, a school that was a short distance from their new home. [67] Mr. Telford Senior also recalled the events of 1999 when there was a further police investigation into Mr. Duff's activities. Mr. Telford Senior

recalled that he and, in particular, his wife were very angry because nothing had been done earlier to address Mr. Duff's activities. He said that they had both spoken to the police at the time. [68] It is also important that in December 1999, Mr. Telford Senior and his wife made a compensation claim, on behalf of the Plaintiff, under the Crime Victim Assistance Program (the "1999 Compensation Claim"). In a decision dated March 8, 2000, the Plaintiff was awarded a modest amount for his pain and suffering (the "2000 Compensation Decision"). iii) The Evidence of Mr. Labelle, Ms. Stuart and Mr. Ealey [69] The foregoing individuals, each of whom was a student at Glenwood Elementary, albeit at different times, gave evidence on behalf of the Plaintiff. [70] Mr. Labelle and the Plaintiff started at Glenwood Elementary together. They were best friends in those early school years; however, they lost touch with each other almost immediately when the Plaintiff and his family moved away from the area. Mr. Labelle started in kindergarten and completed his elementary schooling at Glenwood Elementary. [71] Mr. Labelle understood that Mrs. Telford had spoken to his mother and he remembered being told by his mother to keep away from Mr. Duff. He recalled seeing Mr. Duff at different times. He remembered seeing him on his own property. He saw Mr. Duff near the property line where there was a

bike rack and where children would chain their bikes. This was likely his strongest memory of where he saw Mr. Duff. He also saw Mr. Duff talking to Mr. Sikora. He recalled Mr. Duff at the back field of the school. He could not recall how often "Not all the time" "Sometimes" and "probably at lunch time". [72] He said that Mr. Duff would roam around the school grounds talking to the school monitors and to schoolchildren. He accepted that it was hard to recall "timelines and frequencies". He had no recollection of Mr. Duff being a volunteer at the school or of his attending the Rainy Day Festival. He believed that he saw Mr. Duff at least once on Sports Day though there was no reference to when that might have been. He recalled the Plaintiff moving away and leaving Glenwood Elementary part way through the grade 3 school year. [73] Mr. Ealey and Ms. Stuart were not contemporaries of the Plaintiff at Glenwood Elementary. They started at the school several years later. Objection was taken to their giving any evidence on account of that evidence being irrelevant because of the different time frames in which the events the Plaintiff described took place and when Ms. Stuart and Mr. Ealey attended at Glenwood Elementary. The Defendants also argued that the evidence of Mr. Ealey and Ms. Stuart was in the nature of similar fact evidence. I did not agree with either of these submissions

and admitted the evidence of both witnesses. [74] I did so largely on the basis that the evidence of these witnesses might shed light on whether the practices of the Defendant School District, in monitoring and safeguarding the grounds of Glenwood Elementary, had changed in the years after the Plaintiff had moved away from the school. Such evidence, though not an admission of liability, can be used to address the steps that a defendant has taken to reduce risk. It might also be a factor in considering whether the school's practices from 1991 to 1993, were sufficient to keep the school's property reasonably safe for its students; see Anderson (Guardian ad litem of) v. Erickson (B.C.C.A.) (1993), 71 B.C.L.R. (2d) 68 (C.A.) at paras. 2, 14, 16, 29, 31, 35; Sandhu (Litigation Guardian of) v. Wellington Place Apartments, 2008 ONCA 215 at paras. 60-61; and Cahoon v. Wendy's Restaurants of Canada Inc., 2000 BCSC 629 at para. 21. [75] Mr. Ealey began to attend Glenwood Elementary in kindergarten and he was there from 1996 to 2000. He recalled that over the lunch hour the school grounds were supervised by monitors with only the odd teacher being outside. He described the school grounds, how those grounds could be accessed, what areas were treed or had bushes and where "Pete the Bum" would sometimes live. He recalled that Mr. Sikora was the principal until he was in grade 3 and that Mr.

Yep then became the principal. [76] He knew Mr. Duff, who he said he knew as "Joe the pedophile", from the time that he started school. His mother and brother had told him to stay away from Mr. Duff. He would see Mr. Duff on the school grounds, over the lunch hour, two to three times a week and perhaps more often. Mr. Duff would walk along the fence and interact with children handing out candy to the children and being "friendly". He described Mr. Duff as a "kind of celebrity". Teachers and supervisors knew him and would greet him. [77] Mr. Duff would also be in the area where children would chain their bikes near the front of the school and near Mr. Duff's home. This generally occurred after school and Mr. Duff would stand at or near the entrance to the school. Mr. Duff would offer to pump up the tires on children's bikes, give them candy and he would be friendly. Mr. Ealey recalled seeing Mr. Duff at the Rainy Day Festival one year. He said that Mr. Duff gave children, including Mr. Ealey, candy all the time. When Mr. Ealey was on his way home from school, Mr. Duff would sometimes have Mr. Ealey reach into his pants pocket for spare change. [78] Ms. Stuart was a student at Glenwood Elementary from the time that she was in kindergarten until grade 5 or from 1996 to 2001. She recalled Mr. Sikora being the principal of the school from when she was in kindergarten to when she was

in grade 2 (1996-1999). She recalled that at lunch hour and recess, there were sometimes teachers on the school grounds but that the students were primarily overseen by monitors or supervisors. She had a particular memory of a male supervisor with a Scottish accent who had red hair in a ponytail. [79] Ms. Stuart said that she saw Mr. Duff once or twice a week on the Playground or the school's field. He would offer one of Ms. Stuart's friends, Chelsea, maple candies. In grade 1, this would often occur when they were playing on the swings. In grades 1, 2 and 3, it would also happen elsewhere on the Playground. Once Mr. Duff tried to give Chelsea a five dollar bill. She said that she often saw Mr. Duff walking across the field, or on the Playground, and he would talk to her and offer her candies. [80] These behaviours bothered Ms. Stuart and Chelsea and they reported Mr. Duff's conduct to two different monitors who then brushed them off. They went to the Principal's or Vice Principal's office and spoke to a secretary who told them to walk away if Mr. Duff made them feel uncomfortable but who did not respond further to their concerns. [81] Ms. Stuart also said that in grade 3, she and Chelsea tried to speak to Mr. Yep, the then principal, on three different occasions about Mr. Duff. They wanted to do so because Mr. Duff was offering them candy and because he refused to take "no"

for an answer. Mr. Yep was not available and the secretary told them to leave. Ms. Stuart said that she told the secretary she spoke to that she had a piece of paper from the police which she described, during her cross-examination, as a kind of restraining order that related to Mr. Duff and that required him to keep away from Chelsea and off of the school grounds. [82] Ms. Stuart and Chelsea then complained to the red-haired monitor with the Scottish accent who, in turn, spoke to Mr. Duff. Ms. Stuart said that after this time Mr. Duff was not seen around as much often. [83] Ms. Stuart also gave detailed evidence of seeing Mr. Duff at one of the Rainy Day Festival events and she described what he was doing at the time. iv) The Evidence of Mr. Olsen [84] Mr. Olsen, a naturopath, regularly saw the Plaintiff, as a patient, from late 1989 to 2000. Over this time, Mr. Olsen saw the Plaintiff for various difficulties. Mr. Olsen confirmed, based on his records, that the Plaintiff continued to wet his bed through much of 1990 and into 1991 or when he was five years old. His mother was concerned about his lack of concentration, his tantrums, his aggression, and his being "whiny". Mrs. Telford was also concerned about his destructiveness. For example, he had damaged his mother's car. He was fearful of being alone and of the dark. He had bad dreams. Mr. Olsen accepted that these

behaviours were atypical for a healthy child. All of these behaviours were ongoing before the Plaintiff started kindergarten. Mr. Olsen identified a note, made in September 1991, where Mrs. Telford told him that the Plaintiff had reported sexual abuse to her that had continued, at that time, for about a year. He also accepted that the Plaintiff had had behavioural disorders that continued for as long as he cared for the Plaintiff. [85] These difficulties, or some of them, as well as other problems continued for years. The Plaintiff was aggressive and fearful. He had nightmares. He overate. He could not, for a period of time, control his bowels. He struggled to concentrate at school. Mr. Olsen said that aspects of the Plaintiff's difficulties were very unusual. [86] In his direct evidence, Mr. Olsen testified, based on his own memory and with reference to a note, that Mrs. Telford told him, in early 1994, that the family had decided to move from the area. [87] I am aware that the weight of authority militates against admitting statements, drawn from clinical notes and records, that are made to doctors or counsellors for the truth of their contents; Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 22-39; Cambie Surgeries Corp. v. British Columbia (Attorney General), 2016 BCSC 1896 at paras. 9-10. In this case, the matter is further complicated by the fact that the

statements about the Plaintiff having been sexually abused, that were made to Mr. Olsen, were made by Mrs. Telford rather than by the Plaintiff himself. [88] Still further and importantly, Mr. Olsen accepted, in his cross-examination, that various notes he had made at the time, for example in December 1992, in January 1994 and, importantly, in February 1994, all of which refer to abuse, could all have referred to the abuse that Mrs. Telford had reported to him in September 1991 and not thereafter. I say the February 1994 note is important because it is at this time that Mr. Olsen says that he was told by Mrs. Telford that the family had decided to move from the area. The Evidence Adduced by the Defendants [89] The witnesses of the Defendants fell into four broad groups. The first such group consisted of individuals who were either principals, vice principals or teachers at Glenwood Elementary at some point in time between 1991 to 1994 and 1996 to 2000, including: a) Ms. Hird-Rutter, the Vice Principal from 1991 to 1995; b) Mr. Bodman, the Vice Principal from 1996 to 2000; c) Mr. Yep, the Principal from 1995 to 2001; and d) Miss Flumerfelt, a teacher at Glenwood Elementary from 1981 to 2003. [90] The second group consisted of individuals who are involved in the Glenwood Elementary School Parent Advisory Council ("PAC"). This included each of Ms. Murray, Ms. Braidwood and Ms.

Puchalski, all of whom were involved with the PAC from 1991 to 1993. [91] The third group consisted of individuals who had been hired by the School District to monitor or supervise the students at Glenwood Elementary over the lunch hour. Though teachers oversaw and supervised recess breaks, they did not generally do so over the lunch or noon hour. This group of noon hour monitors included: a) Ms. Denison, a noon hour supervisor at Glenwood Elementary from 1998 to 2009; b) Ms. Weisberger, a noon hour supervisor from 1998 to 2000; c) Ms. Sheppard, a noon hour supervisor from 1991 to 1998; and d) Ms. Stewart a noon hour supervisor from the fall of 1993 until December 2000. [92] At different times, these monitors wore vests and had walkie talkies. At times, there were three such monitors and at other times, there were four. At all times, the monitors were placed in different parts of the areas that students played in over the lunch hour and they circulated among the students. [93] The fourth group included individuals who had been asked to undertake a review of various school records within the School District. This was done to comply with the Defendants' disclosure obligations, to advance aspects of the Defendants' case and to establish that the evidence given by various witnesses for the Plaintiff was, on an objective basis, inaccurate and unreliable. [94] This last group

included Mr. Streiling, a former principal who had worked in the School District from 1988 to October 2017. Mr. Streiling was hired by the School District to search for any materials or records that were relevant to this litigation. This group further included Ms. McLachlan, the current coordinator of Student Information Systems for the School District and Mr. Williams, the current Information Systems Manager for the School District. Ms. McLachlan and Mr. Williams gave evidence in relation to certain school records that I will return to and that addressed which elementary school the Plaintiff and Matthew attended during the 1993 and 1994 school years. Weighing the Evidence of the Plaintiff and of the Witnesses Called on Behalf of the Plaintiff [95] I have considered the evidence of the Plaintiff, and of the key witnesses called on behalf of the Plaintiff, in different ways. I have first addressed the evidence of these witnesses separately and weighed the reliability and credibility of that witness. I have done so, where possible, as against that witness's earlier sworn evidence and against the records that still exist in relation to the events that occurred at the time. I have then addressed various concerns that arise in relation to several broad themes that arise from the Plaintiff's case. The Plaintiff's Evidence [96] There are numerous bodies of evidence and means by which

to test the Plaintiff's evidence. Many of the inconsistencies in the evidence of the Plaintiff are not terribly meaningful and are likely the product of the passage of time and of the Plaintiff's young age at the time of the events in question. The Plaintiff did not, for example, recall some significant construction at Glenwood Elementary, when he was in kindergarten or grade 1, that altered the front of the school and aspects of the physical layout that he described. The Plaintiff said that the lunch hour was supervised by teachers. This is clearly not so. That supervision was undertaken by noon hour monitors. This is something that all of the Plaintiff's other witnesses clearly recalled. [97] The Plaintiff believed that the kindergarten day was longer than it actually was and that students had both recess and lunch at the school. This is only relevant because he recalled playing outside at recess and during the lunch hour in kindergarten when it appears, based on the whole of the evidence, that kindergarten children were not allowed outside at recess at least early in the year and they were dismissed before the lunch hour. This also calls into question aspects of the evidence the Plaintiff gave in relation to Mr. Duff's activities when he was in kindergarten. [98] Other difficulties with the Plaintiff's evidence are more significant and more troubling. The Plaintiff, in his

direct evidence, described a single event of abuse by Mr. Duff that occurred in June 1991 or before he started school. He also suggested that he immediately reported this abuse to his mother. In his cross-examination, the Plaintiff admitted he had no memory of when this event had occurred but said that he had read somewhere that it had happened in June. More importantly, it seems clear from the police statements given by Mrs. Telford in 1991, and from the 1999 Compensation Claim, that there were several such events of abuse before the Plaintiff started school and that these events had likely occurred over a period of between six months to a year. It also appears that his mother was uncertain, early on, as to whether she should believe him. [99] It is relevant that each of Dr. Koch and Dr. Elterman, the clinical and forensic psychologist retained by the Defendants, expressed some concern with the Plaintiff's responses to various forms of validity testing that he undertook. These tests, Dr. Koch said, indicated both a tendency to be defensive about admitting to personal faults as well as some exaggeration of emotional distress. [100] Dr. Elterman opined that the Plaintiff "may not have answered in a completely forthright manner", and that "some concerns about distortion of the clinical picture can be raised as a result". He further opined that the Plaintiff presented with certain

patterns or features that were "more common among individuals feigning mental disorder". [101] Both Dr. Koch and Dr. Elterman, however, were of the view that these concerns did not render their test results invalid but rather gave rise to some need for caution. [102] The Plaintiff also appears to have described the details of his abuse to Dr. Koch in terms that were different from his evidence at trial. He told Dr. Koch that Mr. Duff began to abuse him before kindergarten and that that abuse continued for about two years. His evidence at trial suggested that these events occurred over a longer period of time. He told Dr. Koch that he felt unable to tell any adult what was happening until about 1993 when he told his mother and the family then moved away. It is clear that he spoke to his mother in 1991. It is much less clear, for reasons that I will return to, that he reported any wrongdoing to his mother in 1993. [103] Significantly, the report of Dr. Elterman, prepared only a few months before trial, states ": ..I explained to Mr. Telford that it is important that I have a sense of the severity and duration of sexual contact and also the frequency. Mr. Telford says that he is not sure and he knows that it went on until they moved. He estimates that it was between the age of 5 and 7 [104] The evidence of the Plaintiff at trial was, as I have earlier described, much more

specific, precise and detailed. Indeed, Mr. Telford purported to be able, with some precision, to describe the sequence in which this abuse occurred, as well as its location, its frequency and its severity. I accept that it has often been difficult for the Plaintiff to describe Mr. Duff's abuse. Though this was particularly so when he was a child, it has remained difficult throughout his ongoing counselling. The report of Dr. Elterman, however, was prepared only a few months before the start of the trial, in a private setting, and in circumstances where the importance of being reasonably open had been explained to the Plaintiff. [105] It is significant that when the Plaintiff was interviewed by the police in 1999, at the age of 13, he described his earlier interaction with Mr. Duff in 1991. He gave no evidence or description whatsoever of any wrongdoing or abuse after that time. At trial he sought to explain that the police interview in 1999 was only directed to the events of 1991. I will again return to this but I consider it highly unlikely that if the police had been alerted to any wrongdoing by Mr. Duff, in relation to the Plaintiff from 1991 to 1993, that they would not have pursued or questioned the Plaintiff in relation to those further events. [106] The Plaintiff also sought to explain his failure to tell the police about what he now says occurred during his

kindergarten to grade 2 years at Glenwood Elementary by explaining that his 1999 interview with the police was traumatic. He said the police used graphic terms to describe his genitals. He said that he had been "bawling his eyes out" and that he was "crying and crying" during the interview. In his examination for discovery, the Plaintiff had described his interview with the police as a "30 minute conversation of me crying and them peppering me with questions..." [107] It may be that these descriptions reflect the Plaintiff's memory of events. But the description is fundamentally inaccurate. At trial, an audiotape of the Plaintiff's 1999 interview with the police was made available and played in court. The police officer who interviewed the Plaintiff was solicitous and patient. The Plaintiff was responsive in the way a 13-year-old boy would be. Mr. Telford did not break down or cry at any point during the interview. This objective record shows how completely unreliable, for whatever reason, the Plaintiff's evidence was on a relevant and important issue. [108] The Plaintiff's mother also provided the police with a statement in 1999. That statement refers to her having gone to the police in 1991 and before the Plaintiff started kindergarten at Glenwood Elementary. It says nothing about her having done so in 1993 or 1994. In his cross-examination, the Plaintiff said that this was

because his mother was only asked about the 1991 events. I do not accept this. It is inherently improbable. It is also unlikely that the Plaintiff would, at this point, have any such precise recollection. Matthew's Evidence [109] There are significant difficulties with the evidence of Matthew. He was examined under oath, pursuant to court order, on January 31, 2018 or about 2 ½ months before the start of the trial. At that time, he had limited memory of Mr. Duff or of Mr. Duff being present at Glenwood Elementary. At that time, he recalled Mr. Duff attending at a single Rainy Day Festival event. At that time, he had a memory of seeing Mr. Duff, speaking to adults, near the school fence that separated the school from Mr. Duff's property. He could not recall if he saw Mr. Duff at this location once or more than once. He had no memory of ever seeing Mr. Duff speaking to his brother while his brother attended at Glenwood Elementary. [110] At trial, Matthew testified that he saw Mr. Duff on the Glenwood Elementary grounds two to three times a week. He saw him at recess and at lunch. He saw him in the Playground area and around the basketball court "talking to kids". He recalled that his brother would be in the vicinity. He now also had a clear and precise memory of what Mr. Duff was doing at the Rainy Day Festival. [111] Matthew sought to explain the significant discrepancies in his

evidence at trial with his earlier sworn evidence by saying that he had been shown a map of the school in his direct evidence that served as a "trigger" that brought back these various memories. I do not accept that evidence. [112] Matthew also, as I said earlier, gave a statement to the police in 1999. He would have been 16 years old at the time. That statement makes no reference to his being aware of any incident or report to the police involving Mr. Duff from 1991 to 1993. That report does refer to a pre-kindergarten incident. Mr. Telford Senior's Evidence [113] I view Mr. Telford Senior's evidence as I do the Plaintiff's. There are some inaccuracies in his evidence that are not particularly meaningful. There are others that are quite significant. Collectively, they serve to appreciably undermine the reliability of his evidence. [114] Mr. Telford Senior recalled that the Plaintiff went to a pre-school at Glenwood Elementary. On this basis, Mr. Telford Senior said even the events in 1991 and prior to the Plaintiff going to kindergarten were based on Mr. Duff "luring" the Plaintiff from the school's grounds to his home. It is clear from the evidence of multiple witnesses that there was never a pre-school at Glenwood Elementary. [115] Mr. Telford Senior's memory was that there were no issues with the Plaintiff's health and emotional well-being prior to his being abused by Mr.

Duff in 1991. This is inconsistent with the records and evidence of Mr. Olsen. Similarly, his memory was that, though the Plaintiff had some concentration issues, there was really no difficulty with his performance at school. This too is inconsistent with the Plaintiff's academic records. The Plaintiff struggled significantly at most times. He changed schools repeatedly. In several years, he missed 30 to nearly 40 days a year from school. These facts are further developed in the report of Dr. Koch. [116] Mr. Telford Senior's evidence in relation to his wife's actions in 1991, and to Mr. Sikora's response, are also not supported by the objective record. Mr. Telford Senior said that his wife went to Glenwood Elementary and to the police on the same day, and that Mr. Sikora, the principal, had told her that he wished she had not gone to the police. It is clear from the statement that Mrs. Telford gave to the police in 1991 that she went to the school first and that she did not speak to the police until at least a month later. Thus, Mr. Sikora could not have said what Mr. Telford Senior has suggested. [117] Importantly, Mr. Telford Senior testified at trial that, in 1993, upon learning that Mr. Duff's abuse of the Plaintiff had continued, his wife again spoke to the police. This is not entirely consistent with his evidence at his Examination for Discovery. That evidence was in

relation to a hand written notation, from 1993, that he found in one of his day timers. At that examination, Mr. Telford said: 176 Q Yes. A All I can say on this is that I saw that there and the file number and I realized that it was, you know, getting on in 1993 and we moved at the beginning of the 1994, so I assumed that this had something to do with the case. I don't know for sure or not, but I picked that out because of the fact there was a file number, the constable's name is there, and it's getting near the end of 1993, so I sort of filled in the basis. But I can't say for sure that that has to do with the incident. 177 Q All right. And was it that entry that made you think that there was a report in 1993 to the police? A Well, when I looked at that, yeah. At the point that I looked at that, yeah. Because when I looked at that, I didn't remember -- I wasn't remembering back or, you know, all the things that happened in 1993, so I looked at that and I said, well, that may have something to do with it, so 178 Q So let me ask it again, Mr. Telford: You were asked to look through records for information relating to this lawsuit, is that correct, at some point? A I volunteered. I just thought it might be a good idea to check the history from 1991 right on to even 1999, because I collect -- my whole life is in these daytimers, everything I do. So when I saw that, I thought hmm,

this might be something to do with it. 179 Q And was it that entry from May 26th, 1993, about Cst. Ruyssen and the file number, that triggered a recollection that you or your wife contacted the police in 1993? A Triggered a recollection. 180 Q Prior to seeing that entry in your daytimer, did you recall reporting in 1993 continuation of the abuse by Mr. Duff -- A No. Actually, probably when I saw, I did not recall. 181 Q Until you saw that entry? A Well, I saw that entry and I thought, well, there may have been a meeting with the police at that time, in looking at that entry, because of the timing. [118] Subsequent correspondence from the police, in response to a request by counsel for the Plaintiff for files or reports from 1993, confirms that the file number Mr. Telford Senior found in his day timer is not referable to any file the police would have kept. [119] At his Examination for Discovery Mr. Telford Senior also said: 161 Q Did he tell you when it was happening? In the daytime or after school or -- A No, I don't recall when. 162 Q Okay. And what did you do? A I went to my wife and said that's it, we're out of here. 163 Q Did you do anything else? A No. 164 Q Did you go to the police? A No. 165 Q Why not? A Just a second. 1993 -- wait a minute. Yes, there was a discussion with the police. There was a discussion with the -- sorry, there was a discussion with the police. And

we basically went over the same grounds all over again and that it was still continuing, and they said they would do an investigation. That's what I remember. 166 Q So who contacted the police in 1993? A I can't honestly say who. I can't remember who aside from my wife. 167 Q Did you speak to the police at all in 1993? A 1993? No, my wife, if I recall. [120] Mr. Telford Senior, in his direct evidence, suggested that he and his wife went to see the police together. That evidence is inconsistent with the foregoing excerpt from his examination for discovery. In his cross-examination, however, Mr. Telford Senior said that only his wife had spoken to the police in 1993. [121] This evidence from Mr. Telford Senior's examination for discovery is also inconsistent with his evidence at trial that both he and his wife went to speak to Mr. Sikora in the latter part of 1993. Mr. Telford Senior had also provided a statement dated October 18, 2017 in connection with the Defendants seeking to examine him. Mr. Telford Senior accepted that he had tried to describe events as he recalled them. That October 18, 2018 statement made no reference to Mr. Telford Senior or to his wife meeting with Mr. Sikora in 1993. [122] The 1999 Compensation Claim, which was completed by Mr. Telford Senior and his wife, makes no reference to their complaints to the school in 1993 or to either of them speaking to the

police. Indeed, it makes no reference at all to any event involving the Plaintiff and Mr. Duff after the Plaintiff started school in September 1991. The Evidence from the Other Witnesses for the Plaintiff [123] Further difficulties exist with the reliability of the evidence of other witnesses who gave evidence in the Plaintiff's case. I have focussed on the evidence of one of these witnesses as illustrative of the concerns that exist with the evidence of these witnesses generally - most of whom were young children at the time of these events. I have focussed on the evidence of Ms. Stuart because she gave specific, detailed and unequivocal evidence in relation to numerous matters. Based on the whole of the evidence and, in particular, various objective records, Ms. Stuart was simply mistaken, in numerous respects, in what she said. [124] Ms. Stuart testified that Mr. Sikora was the principal when she was at Glenwood Elementary from kindergarten to grade 2 (1996 to 1999). This is clearly wrong. Based on the evidence of the Defendants' witnesses and, in particular, the School District's records, Mr. Sikora left Glenwood Elementary at the end of the 1995 school year and before Ms. Stuart ever went to the school. [125] Ms. Stuart testified, at several points, that her friend Chelsea left Glenwood Elementary at the end of grade 3 or in June 2000. The relevant School District records

established, however, that Chelsea was no longer at Glenwood Elementary as of September 1999. This is relevant in a further respect. Ms. Stuart testified that after she and Chelsea complained, to no effect, to the school about Mr. Duff bothering Chelsea, they complained to a red haired male noon hour supervisor who had a Scottish accent. It is clear from the evidence of several witnesses that that distinctive gentleman was named Mr. Waterston. [126] The documents produced by the School District, and the evidence of witnesses who knew Mr. Waterston, establish that Mr. Waterston only began working as a noon hour supervisor at Glenwood Elementary in December 2000. At that point, Chelsea was no longer at Glenwood Elementary and she and Ms. Stuart could not have complained to Mr. Waterston about Mr. Duff. Furthermore, in September 1999, the staff at Glenwood Elementary had been apprised by the police about a concern with Mr. Duff and had sent out a letter to the parents of students at the school alerting them to this concern. It seems clear, based on the evidence of several witnesses, that after this occurred, Mr. Duff was not seen at the school or indeed in the neighbourhood. The evidence Ms. Stuart gave about her interaction with Chelsea, and with Mr. Waterston, is simply mistaken in several further respects. In September 1999, Chelsea was no longer a student at the school. In

September 1999, Mr. Waterston had not yet started to work as a noon hour supervisor at the school. After September 1999, Mr. Duff was no longer seen in the area. [127] In a similar vein, Ms. Stuart testified that when she and Chelsea went to complain to a school secretary about Mr. Duff, she told the secretary that she had a piece of paper from the police that she later described as a sort of restraining order. That evidence only makes sense if it relates to the period after the police investigation in September 1999 at which time, again, Chelsea was no longer at Glenwood Elementary and Mr. Duff was no longer seen in the neighbourhood. [128] The distinction between credibility and reliability is well illustrated in the evidence of Ms. Stuart. I am satisfied that she endeavoured to be forthright. Her evidence, in numerous material respects, was, however, clearly mistaken and unreliable. The extent of that unreliability necessarily informs other aspects of her testimony. Weighing the Evidence of the Defendants' Witnesses [129] The issues that arise from the evidence of the various witnesses called by the Defendants are quite different. There were, inevitably, some witnesses who recalled matters differently or who were mistaken in their recollection. Some, for example, only recalled one or the other of the entrances, through the fence, on the east and south of the school. Some

recalled the homeless gentleman called "Pete the Bum" near the school grounds. Others did not. Others recalled seeing him elsewhere in the community where, apparently, he continues to reside to this day. Some witnesses recalled Mr. Duff. Others did not. Some recalled seeing Mr. Duff in front of his house and some recalled speaking to him near his home. [130] These differences are of relatively little consequence. What is absolutely consistent in the evidence of the Defendants' witnesses, however, was that no one recalled ever seeing him on the school's grounds or near the students of Glenwood Elementary during school hours. It is this central issue that is important and that gives rise to one of the central difficulties with the Plaintiff's case. Further Difficulties with the Plaintiff's Case [131] There are three further broad concerns that emerge in relation to the evidence that was called on behalf of the Plaintiff. i) The Frequency with which Mr. Duff is Alleged to have been on School Property [132] I have said that the Plaintiff and his brother reported seeing Mr. Duff, from 1991 to 1993, on the Glenwood Elementary grounds during the school day and about two to three times a week. This occurred on the Playground and on the school fields. Mr. Duff would speak to children, hand out candy and give them money. The Plaintiff also said that Mr. Duff repeatedly led him off of the

school grounds and either into the bushes to the south or back to his home. Mr. Labelle's evidence was more equivocal and he primarily placed Mr. Duff in the front of the school near the fence where children often locked their bikes. That fence separated Mr. Duff's house from the school's property. [133] Ms. Stuart and Mr. Ealey testified that Mr. Duff continued to be on the school grounds, two to three times a week, from 1996 to 1999. They testified that, throughout this period, he would speak to children and give them candy, and sometimes money, during the lunch hour. [134] Thus, a dominant theme of the Plaintiff's case was that Mr. Duff had ongoing and unhindered access to the Glenwood Elementary grounds and to its student population during recess, the lunch hour and on special school events. This is said to have occurred for almost a decade. Furthermore, the Plaintiff's case is not based on a lapse or error on the part of the Defendants. Instead, it is based on a systemic and ongoing indifference by the school principal, teachers and monitors to the presence of an adult male among the student population. [135] This is to be compared with the evidence of the Defendants. The various noon hour supervisors, without exception, give evidence that no adults were allowed on the school grounds or near the students. At all times, there were 3 to 4 such supervisors who circulated and

oversaw different parts of the school grounds. Even parents were required to go to the school administration office to report in before they could pick up their children and leave school with them. While I accept that from time to time some adult may have come on to the school's grounds through one of the gates I have described, I do not accept that such individuals were permitted to interact with the students. [136] In addition, teachers oversaw the Playground and the fields during the recess break. Ms. Hird-Rutter, the Vice Principal at Glenwood Elementary from 1991 to 1995, said that she was typically outside, supervising students, three times a week during both recess and the lunch hour. Mr. Bodman, the Vice Principal at Glenwood Elementary from 1996 to 2000, said that he was outside during the lunch hour on virtually every day unless he had a meeting. None of these witnesses, some of whom knew Mr. Duff, ever saw Mr. Duff or an older man interacting with children or giving them candy or money. [137] I accept the evidence of the Defendants. It is almost inconceivable that a group of adults, who were charged with protecting and overseeing the safety of kindergarten and elementary school children, would allow an unknown adult to routinely, indeed on a near daily basis, walk among, talk to and distribute candies or money to children all while on school property. In the case of

the Plaintiff, these same individuals would have repeatedly allowed an older man to lead a child off of school property in any one of several directions. To the extent, for example, that Mr. Ealey suggested that Mr. Duff regularly spoke to teachers and supervisors and that he was a "celebrity" of sorts, it is hard to imagine that not one of the Defendants' witnesses would now recall his presence in or on the school's grounds. A number of the Defendants' witnesses expressly addressed the allegation, made by the Plaintiff and several of his witnesses, that Mr. Duff roamed around the school's property during recess and the lunch hour, talking to children and handing out candies. Without exception, they denied that that could have occurred much less that it occurred in an unregulated way and on an ongoing basis. [138] Furthermore, the uniform evidence of the PAC witnesses was that they had either parents or teachers, rather than random members of the public, help out at the Rainy Day Festival or Sports Day events. I accept that evidence. I do not accept that Mr. Duff served as an authorized volunteer at these events. I do not say that Mr. Duff may not have gone to one or both of these events at times. Both of these events would have been attended by many parents and other adult family members. I do not accept, however, that the Plaintiff was sexually assaulted by Mr. Duff at either

of these events. This conclusion arises as a result of the frailties in the evidence of the Plaintiff and the other witnesses he called and on account of my conclusions in relation to the other aspects of the Plaintiff's case. ii) The Absence of any Objective Record that Relates to any Conduct on the Part of Mr. Duff or to any Complaint by the Plaintiff from 1991 to 1993 [139] When Mrs. Telford reported her concerns to the police in 1991, the matter was immediately investigated. The record of her initial call to the police was available at trial. The police thereafter spoke to Mrs. Telford and the notes of that interview were also available at trial. The police also spoke to Mr. Duff and to the Plaintiff at the time. This is apparent from a written log, which recorded various activities by date and time. A similar log also addressed various matters that occurred in 1999. [140] The Defendants sought to admit these police records as a business records exception to the hearsay rule. In Schaeffer v. Woods, 2013 SCC 71, Justice Moldaver, at para. 63, identified a duty on police officers to make notes "on the events that transpire during the officer's tour of duty". Justice Frankel, in R. v. Lotfy, 2017 BCCA 418 accepted, at para. 48, that police officers have an obligation to make notes, although he questioned whether there was a "positive" legal duty to do so. [141] I do not, however, consider that it is necessary for me to deal with whether the police records in question are admissible under the business records exception because I do not consider that these records constitute hearsay evidence. [142] A defining features of hearsay evidence is the fact that the out-of-court statement is adduced to prove the truth of its contents: see R. v. Khelawon, 2006 SCC 57 at para.

35. The police logs or records before me are not being used to establish the truth of their contents. Instead they are relevant simply because the records themselves were made. When an out-of-court statement is relevant to an issue apart from its truth, it is tendered for a non-hearsay purpose and it is admissible for that limited purpose: see Alan W. Bryant, The Law of Evidence in Canada, 3rd ed. (Markham, Ontario: LexisNexis Canada Inc., 2009 at 6.29) and Khelawon at para.

36. Accordingly, I consider it appropriate to admit these police records or logs to establish that the entries in them were made and not for the truth of those entries. If I am mistaken in this I would nevertheless arrive at the same central conclusions based on the statements that were given by each of Mrs. Telford and the Plaintiff and various other records. [143] When concerns about Mr. Duff resurfaced in 1999, the police again contacted Mrs. Telford and obtained a statement from her. They further obtained the statement and audio recording from the Plaintiff to which I have referred. They obtained a statement from Matthew. These statements were, again, available at trial and were admitted into evidence. Finally, the 1999 Compensation Claim that was filed by Mr. Telford Senior and his wife was available to me. So too was the 2000 Compensation Decision that was made in relation to the Plaintiff's 1999 Compensation Claim. [144] There are, however, no records of any kind of the Telford family making any complaint to the police in 1993. I was provided, as I said earlier, with a letter from the police written in response to a request for counsel for the Plaintiff for any 1993 records. That letter indicated that such 1993 records might have been destroyed. That same letter also indicated, however, that the file number used by counsel to make the request was not a number that would

have been used by the police. [145] Several related concerns arise from these various police records. First, again, there is no 1993 police file. This is to be compared with the existence of police records and statements for both the 1991 and the 1999 events or incidents. [146] Second, there is no reference in any of the 1999 police records to any issue being raised by the Telford family in 1993. Those same 1999 records do refer to Mrs. Telford's earlier 1991 report to the police and to the ensuing investigation. [147] Third, neither Mrs. Telford's 1999 statement nor the Plaintiff's statement make any reference to any events between 1991 and 1993. This is relevant in two respects. First, if there had been any record, in 1999, of a complaint having been made in 1993, the police would surely have raised that matter in these interviews. Second, it is very hard to imagine that Mrs. Telford would not have independently raised a second set of events and concerns that arose between 1991 and 1993. She is said to have been angry because the police had done nothing when she first reported the matter to them and because it appeared that Mr. Duff had since molested other children. In her 1999 interview, she speaks about her 1991 complaint. Surely she would have said "I made two separate complaints and you did nothing on either occasion". [148] To a lesser extent, this would also be true of

the Plaintiff who was 13 years old at the time of his interview. I say "to a lesser extent" only because I accept the Plaintiff would have been reticent to speak about what Mr. Duff had done to him. [149] Fourth, counsel for the Plaintiff sought to argue that the police failed to conduct an investigation in 1993. This too seems unlikely. The police moved swiftly and thoroughly to address Mrs. Telford's concerns in 1991, even though Mrs. Telford's 1991 statements express some concern that the Plaintiff may have been mistaken or not honest about his complaint about Mr. Duff. There is no reason that the police would not have moved equally quickly if Mrs. Telford came to the police in 1993 and complained of ongoing abuse over the previous two to three years. [150] Finally, though this consideration stands in a somewhat different footing, it does not appear that anyone at Glenwood Elementary was aware of any concern in relation to Mr. Duff or his activities before 1999. Had Mr. and Mrs. Telford told Mr. Sikora in 1993 that their son had been repeatedly abused during school hours, and while on school grounds, it seems likely that Mr. Sikora would have taken some action. He was a respected and senior principal. He was described by another witness as a "by the book" kind of person. Mr. Yep said he had an obligation and that he would "definitely" have contacted the R.C.M.P. and the

Ministry if he had learned that Mr. Duff had touched a student. It is hard to imagine that Mr. Sikora would not have acted in a similar manner. Still further, it is hard to imagine that he would not at least have discussed the matter with his Vice-Principal, Ms. Hird-Rutter, if not with other teachers and lunchtime supervisors. It is equally unlikely that he would continue to allow Mr. Duff unimpeded access to the school's grounds and to a vulnerable student population. [151] Mr. Sikora's alleged response to being told that one of the students in the school had been abused for several years, during the school day and on school property, is to be contrasted to Mr. Yep's response in 1999. It is to be recalled that in 1999, the police raised a concern in relation to an individual who lived adjacent to the school. There was, however, no suggestion that anything had occurred on school property. Nevertheless, Mr. Yep said that he passed the information he received on to the Zone Supervisor, he wrote the letter I have referred to, and he discussed the matter with his staff. [152] Based on the objective record that is available to me and the various considerations I have described, I do not accept that Mrs. Telford made a complaint to the police in 1993 or that Mr. and Mrs. Telford spoke to Mr. Sikora at that time and told him that Mr. Duff had been sexually molesting or assaulting the

Plaintiff. iii) The Change of School Issue [153] There is one further element of the Plaintiff's case that is relevant. A central thesis of the Plaintiff's case was that the Telford family moved from their home and had the two Telford boys transferred out of Glenwood Elementary midway through the 1993/1994 school year. This was, Mr. Telford Senior testified, partly on account of the fact that he and his wife had become "quite vocal" about Mr. Duff and the school's handling of the matter and partly on account of the belief that neither the administrators and teachers at Glenwood Elementary nor the police would take any active steps to protect their son from Mr. Duff. [154] This evidence can be addressed and weighed in different ways. [155] First, the Plaintiff led no evidence from any third party who confirmed that Mr. Telford Senior and his wife had become "quite vocal" about Mr. Duff's activities in the fall of 1993. Conversely, several of the Defendants' witnesses, who either worked at Glenwood Elementary or who had children at Glenwood Elementary in 1993, denied having any knowledge either of any wrongdoing by Mr. Duff or of any concern on the part of the Telford family in relation to the Plaintiff. I have said that the statements given to the police in 1999, as well as the balance of the 1999 police record that was in evidence, make no reference to any complaints or

concerns in relation to the Plaintiff and to Mr. Duff in 1993. The same is true of the 1999 Compensation Claim materials. [156] Second, other aspects of the objective and contemporaneous records are not consistent with the suggestion that the Plaintiff and Matthew were moved from Glenwood Elementary to Blue Mountain Elementary midway through the 1993/1994 school year. [157] To be sure, there were records which established that the Telford family sold their home by Glenwood Elementary in January 1994. There were further records which established that they purchased a new home in May 1994. [158] The objective record, however, establishes that the Telford boys did not move from Glenwood Elementary at any time during the 1993/1994 academic year. This fact was established through various computer files and other records that were uncovered during the School District's search for relevant documents. [159] Specifically, the School District located some old CDs in a vault. These CDs contained information from a program called Mac School. At the time, all of the schools in the School District, including Glenwood Elementary and Blue Mountain Elementary, tracked the presence of their students, on a day-to-day basis, within the school that they attended. At the end of the school year, each school would send a floppy disk of information, including information relating to each student's

attendance, to the School District office. The person who, at that time, was the Student Information Systems Coordinator would then transfer the information from each floppy disk to his or her desktop computer. Once all the information had been transferred, the Student Information Systems Coordinator would burn a CD for that year containing all of the information from all of the schools. Significantly, the CDs that were created contained information that could only be read and that could not thereafter be altered. [160] These records, and this transfer of information, were the subject of relatively extensive evidence and cross-examination. I am satisfied, based on the whole of that evidence, with the authenticity and reliability of the School District's records and, in particular, with the specific records that relate to each of Glenwood Elementary and Blue Mountain Elementary for the 1993/1994 school year. [161] These various records establish, in multiple ways, that both the Telford boys were at Glenwood Elementary throughout the 1993/1994 school year. First, the 1993/1994 Glenwood Elementary records confirm that both boys were present at the school throughout the year. When students left the school, at some point during the year, their names appeared in a different font. The names of both Telford boys appeared in the regular font in the Glenwood Elementary records.

Importantly, a sheet called the "Student Cumulative Register" tracked and recorded each student's attendance at the school on a daily basis. Thus, the "Student Cumulative Register" for each of the Plaintiff and Matthew shows exactly what days each of them missed school, while at Glenwood Elementary, in the 1993/1994 school year. These records track the attendance of both boys through to the conclusion of the school year in June 1994. [162] At the same time, the Mac School records for Blue Mountain Elementary have no record for either of the Telford boys at any time in the 1993/1994 school year. [163] Finally, a separate and central school record for the Plaintiff, called a Permanent School Record, tracked what school the Plaintiff attended and the year in which he did so from kindergarten to grade 12. The Plaintiff's Permanent School Record identified that the Plaintiff was at Glenwood Elementary throughout the 1993/1994 school year. That record also indicates that the Plaintiff began to attend Blue Mountain Elementary in September 1994. [164] This detailed and objective documentary record is to be compared with the evidence of each of the Plaintiff, Matthew and Mr. Telford Senior. Each of them testified that the Plaintiff and Matthew transferred schools mid-year in early 1994. This evidence was corroborated by Mr. Labelle, who had been the Plaintiff's childhood friend, and by

Mr. Olsen, the Plaintiff's naturopath, who had a memory of Mrs. Telford telling him that the family was moving and who made a contemporaneous note that the family was doing so. [165] I consider that each of these witnesses believed what they said in their evidence. I am satisfied, however, that each was mistaken. Perhaps they confused or conflated the Telford family selling their home and moving with the Telford boys transferring schools. I am satisfied, however, on the basis of the evidence I have referred to, that neither of the Telford boys were moved from Glenwood Elementary during the 1993/1994 academic year. That conclusion further undermines an important aspect of the Plaintiff's case. Conclusion [166] I have discussed my concerns in relation to the specific evidence given by the Plaintiff and by various witnesses for the Plaintiff. I have explained why I do not accept broader aspects of the Plaintiff's case. I have also explained why I generally accept the evidence of the witnesses for the Defendants. Based on these conclusions, I do not consider that the Plaintiff has satisfied the burden of proof that rests with him. [167] Specifically, I do not consider that the Plaintiff has established that he was sexually abused or assaulted at any time while he was a student at Glenwood Elementary and while he was in the care of the School District. I further do not consider that

the Plaintiff has established either that the Defendants were negligent or that they breached any fiduciary obligation they owed him. Accordingly, the Plaintiff's claim is dismissed. [168] Absent there being facts of which I am unaware, the Defendants are to receive the costs of this action. If the parties wish to address the issue of costs further, they may contact the Registry and fix a date to do so. "Voith J."