A former air cadet from Saint John has been given a judicial go-ahead to sue the attorney general of Canada for sexual abuse at the hands of an air cadets officer in the 1980s.
A legal bid by lawyers for the attorney general to have the case dismissed on the basis the sexual abuse did not happen during "cadet time" was rejected by Court of Queen's Bench Justice Hugh McLellan, clearing the way for the lawsuit to proceed to trial.
The case is scheduled to be heard in Saint John Court of Queen's Bench on July 16.
In the statement of claim, former cadet RJM is suing for unspecified financial damages for being sexually abused by Lt. Edward O'Leary, who served as an adult officer with the 527 Simonds Squadron Air Cadets in the 1980s.
O'Leary has been convicted in criminal court for sexual abuse involving RJM.
The statement of defence filed by the Attorney General of Canada says O'Leary was charged with "various sexually related offences in relation to alleged sexual misconduct … involving five teenage boys," who were members of the squadron and convicted of "several counts of sexually related charges."
A second lawsuit involving another former cadet is also making its way through the courts, according to RJM's Nova Scotia-based lawyer Ali Raja, who is also representing the second cadet.
Court documents state that RJM joined the 527 Simonds Squadron Air Cadets in 1985 when he was 14 years old. The statement of claim by RJM contends the attorney general placed O'Leary in a position of trust over air cadets.
One of the claims made by RJM in the lawsuit is for negligence by the attorney general for inadequate screening and supervision of O'Leary.
The allegations are contained in court documents and have not been proven.
In an oral decision on the attorney general's pre-trial motion to dismiss the case, McLellan said RJM's claim is founded on sexual assaults and touching by O'Leary when RJM was 16 and O'Leary was an adult officer in the cadet squadron.
'Sexual improprieties' at O'Leary's home
"All the sexual improprieties occurred in Mr. O'Leary's home while the Plaintiff was there on evenings with other cadets and engaged in such things as playing Dungeons and Dragons, socializing and sometimes staying overnight," said McLellan.
"All of that activity had nothing to do with the cadets. It was not `cadet time' and it was completely unofficial," said McLellan. "Mr. O'Leary was in effect enticing the cadets to hang out with him with things like Dungeons and Dragons. This was not something that happened during cadet activities or events that were sanctioned and official."
McLellan said it is clear RJM was at O'Leary's home because other cadets were going to be there too and he wanted to be with them.
At cadet functions, RJM had no direct contact with O'Leary and O'Leary was not his direct supervisor.
Lawyers for the attorney general sought a dismissal on the basis the sexual abuse did not happen in a setting related to cadets, similar to a 1999 Supreme Court of Canada ruling (Jacobi v. Griffiths) involving sexual abuse by a Boys and Girls Club employee where the abuse happened after hours and away from the Boys and Girls club.
However, McLellan also cited a 1999 Supreme Court ruling (Bazley v. Curry) that analyzes the risk of harm and states "the more the employer encourages the employee to stand in a position of respect and suggests that the child should emulate and obey the employee, the more the risk may be enhanced."
'After considering the principles that are summarized in those cases and the circumstances here, it seems to me that there are real issues for trial in this case.' - Justice Hugh McLellan
McLellan said O'Leary was more than just an employee of the air cadets and could be said to "stand in a position of respect."
"As well, his position as a commissioned officer working with young people, who are being encouraged to have a positive view of the military and authority could be said to have suggested that “the child should emulate and obey” this lieutenant," said McLellan.
McLellan rejected the motion to dismiss the case and awarded RJM $2,000 in costs.
"After considering the principles that are summarized in those cases and the circumstances here, it seems to me that there are real issues for trial in this case," said McLellan. "In my view, there is some merit to the Plaintiff’s action and there is much more than what has been called the `germ' of a cause of action."
In his statement of claim, RJM states his career and quality of life have been "detrimentally impacted by the long-term effects of this assault including psychological injury."
He is seeking general damages for loss of enjoyment of life, pain and suffering; general damages for loss of earning capacity; aggravated damages; punitive damages; legal costs and disbursement; prejudgment interest; and any other relief the court deems appropriate.
In a third-party claim, the Attorney General of Canada states: "In the event that Canada is found liable to the Plaintiff for any relief sought in the Statement of Claim, Canada states that O'Leary is solely responsible for the Plaintiff's damages."