6. NEW BRUNSWICK
In December 1992, a former employee of the New Brunswick Training School at Kingsclear,
Karl Toft, was convicted of having sexually assaulted a number of former students at the school. This
brought to public attention the issue of institutional abuse in New Brunswick. A Commission of
Inquiry was subsequently held, and a compensation program established in an attempt to provide
redress to those who were victimized while under the care of the Province.
The New Brunswick Training School at Kingsclear was an institution operated by the Ministry
of the Solicitor General. It was home to minors who had committed delinquencies, as well as to
children who had committed no crimes, but who were wards of the state awaiting placement in foster
In 1985, a counsellor at the school reported an incident of sexual molestation involving Mr.
Toft and a male student. Toft was transferred as a result of the report, but no other action was taken.
A few years later, a colleague and three other male students filed further complaints of sexual assault
against Toft. The regional police and the RCMP investigated the complaints, but no charges were
laid. Toft was later rehired at the school to work at a summer camp.
Toft was finally arrested in September 1991 and charged with 27 counts of sexual assault.
Twelve additional charges were laid in 1992. He ultimately pleaded guilty to 34 counts of sexual
assault and was sentenced to 13 years in prison.
Two more individuals have since been convicted of abusing child residents of New Brunswick
institutions. Another was charged but not convicted. A fifth has been charged and will be tried in
the near future.
On the same date that Toft was sentenced, the New Brunswick Government set up a
Commission of Inquiry headed by the Honourable Richard L. Miller, a former Justice of the New
Brunswick Court of Queen's Bench. The Inquiry investigated allegations of physical and sexual
abuse at three provincial institutions: the New Brunswick Training School at Kingsclear, the Boy's
Industrial Home in Saint John and the Dr. William F. Roberts Hospital School.31 The Boy's Industrial Home was the predecessor institution to the School at Kingsclear. The Roberts Hospital School was a facility operated by the New Brunswick Department of Health for mentally challenged minors and other wards of the state.
Mr. Miller released his Report in February 1995. Included amongst his recommendations was
one for the creation of a compensation program. In June 1995, the Government responded to this
recommendation by establishing the Compensation for Victims of Institutional Sexual Abuse
The stated objective of the program was "to allow for the orderly, appropriate, timely
resolution of claims, made against the Province, by persons who indicate they were sexually abused,
by employees of the Province" at one of the three institutions examined during the Miller Inquiry.
Lawyers from the New Brunswick Department of Justice and those representing the victims had
established a process through which settlements could be negotiated. It was hoped that this would
provide an opportunity to address legitimate claims outside of the court system.
The program commenced on June 8, 1995. On August 29, 1996, the Department of Justice
announced that the Program would end the following day. In a press release, the Minister of Justice,
the Honourable Paul Duffie, explained the reasons for the termination:
[T]his package has been in effect for 15 months, and now I believe that it's time to bring
closure to the process ... I believe that at this point, the majority of claims have been filed and
are currently being investigated and processed.
Claims received after August 30, 1996, were initially treated as ordinary civil court actions,
but on August 19, 1999 the Government re-opened the program and extended the deadline to
November 19, 1999. This was done to accommodate claimants who had been unable to file a claim
within the initial claim period.32
By June 15, 2001, a total of 413 claims had been received. Two hundred and eighty-four of
them had been settled, resulting in a payout of $10,159,744.66.
(a) The Process
All persons who had been sexually abused by an employee of the Province at one of the three
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institutions were eligible for compensation. Physical abuse was not compensable under the program.
There was no formal organization representing claimants in the process. They were
encouraged to retain the services of counsel, but they were free to proceed without one. As it turned
out, about 20 different lawyers represented all the claimants. Counsel were not permitted to charge
a fee greater than 20% of the total compensation paid to a claimant. Legal fees were paid by the
Claimants commenced an application for compensation by filling out a statement of claim
describing the actions of the alleged perpetrator. This statement was delivered to the Legal Services
Branch of the Department of Justice, where it was reviewed by lawyers employed by the Province.
Claimants were eligible for benefits when the Government was satisfied it was likely the claimant had
suffered the harm alleged.
In order to arrive at an opinion, the Government usually requested authorization to review
the contents of the claimant's medical files, psychological reports, young offender files, and the like.
A claimant was also asked to consent to the release of all information relating to him or her which
was obtained in the course of the investigation and conduct of the Miller Inquiry. None of this
information was released to the public.
The claimant was interviewed by a lawyer from the Department of Justice and asked to
recount in detail the actions that were committed against him. The Government had the right to ask
that the claimant be sworn and the testimony transcribed. The Government could also ask that the
claimant be psychologically tested, although no testing could occur without the claimant's consent.
Whenever a name was provided by the claimant, the alleged abuser was contacted by the
Government to obtain his or her side of the story. If he or she was still employed by the Province,
the relevant department was also contacted.
After reviewing all of the available information, the Government chose whether to accept or
reject the claim:
! If it appeared that the claimant did in fact not suffer sexual abuse, as claimed, while
in the care of the Province, the claim was refused. The claimant could then decide to
either withdraw the claim (and possibly sue the Government instead) or avail himself
or herself of the adjudication process described below.
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33The amount of the offer was based upon an award grid developed by the Solicitor General's office in light
of past compensation awards and the nature of the abuse suffered. The grid was never made public.
34The same arbitrator was used for all cases to ensure consistency.
35R.S.N.B. 1973, c. A-10.
! If it was deemed "likely that harm was done to the claimant," a determination of the
severity of the harm was made and an offer, in keeping with the amounts offered to
other claimants who suffered similar harm, was made to counsel for the claimant.33
If it was accepted, it was processed as outlined below. If it was not accepted, the
amount could be negotiated. If an agreement could not be reached after a reasonable
effort at negotiation, the claimant was permitted to refer determination of the award
to an arbitrator. Alternatively, the claimant could decide to opt out of the program
and proceed with legal action in the normal course.
In the end, only allegations against the five employees who were charged criminally were considered
credible by the Government.
As indicated above, in cases where the Government and the claimant did not agree on the
veracity of the claim and/or the quantum of damages, the matter could be referred to an independent
arbitrator.34 The procedure for the arbitration hearing was based on the New Brunswick Arbitration
Act of 197335 (although the parties could agree to dispense with some features of the Act). It was
an informal proceeding in which the rules of evidence were relaxed. Evidence could be presented by
the Province and the claimant, but no witness could be forced to testify. Damages were proven in
the same manner as in a civil case.
The arbitrator decided on the veracity of the claim being presented and, if necessary, the
quantum of damages. The decision was binding and not subject to appeal. Judicial review could be
sought, however, pursuant to the normal rules of court for such matters. In total, 14 cases went to
adjudication. Ten were decided in favour of the Province and four were decided in favour of the
In cases where the Government and claimant agreed on both the veracity of the claim and the
quantum of damages, the settlement recommendation was forwarded to various other departments
of the Government for approval and verification:
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! The recommendation was first sent to a policy advisor at the Department of the
Solicitor General. The advisor would examine the facts of the case and determine
whether the amount appeared to fall within the guidelines of the compensation
program and the normal parameters for claims of a similar nature. If it did, the
advisor would forward the recommendation to the Director of Policy Planning and
! The Director of Policy Planning and Public Affairs would determine whether the
recommendation was "satisfactory." If it was, the Director would order the Director
of Financial Services to prepare a cheque for the amount suggested.
! The Director of Financial Services would determine if he was "in accord." If he was,
a cheque in the appropriate amount would be prepared and sent to the Department
of Justice lawyer in charge of the case.
! The Department of Justice lawyer would examine the cheque and determine if it was
satisfactory. If it was, he or she would deliver it to counsel for the claimant.
This multifaceted approval process was not required for damage awards ordered by the
arbitrator. Instead, a cheque would simply be issued by the Director of Financial Services and given
to counsel for the claimant. In all cases, funds would only be disbursed after the claimant had
released the Province from further liability in relation to the claim.
Information received from claimants in the course of the compensation program was not
referred to the police. Claimants were told that it was their choice whether or not to go to the police.
(b) Details of the Compensation Package
A variety of financial and non-financial benefits were available under the compensation
program. In all cases, however, the total value of compensation (including non-financial benefits)
could not exceed $120,000, excluding any costs for counselling.
Validated claimants were eligible for a financial award. This award was normally given in one
lump sum payment, but in exceptional circumstances (determined by counsel for the Province) a
claimant could be provided with a small interim payment as part of his or her overall settlement.
368 SEARCHING FOR JUSTICE
36Some claimants who were incarcerated had their lawyers manage the money until their release.
37The onus to report income was on the recipient of social assistance benefits. However, when an award
exceeding $50,000 was made to a New Brunswick resident, the Department of Justice advised the Human Resources
Department of the amount of the award.
Claimants also had the option of receiving their compensation, in whole or in part, through a
structured settlement.36 Claimants who received awards of less than $50,000 did not have to include
the money as income for the purpose of determining eligibility for social assistance.37
Financial counselling was offered to assist successful claimants in managing the investment
of their awards. The Province established a contact person to facilitate the provision of those services
and generally assist the victims with inquiries.
Vocational training was made available through New Brunswick Community Colleges. The
Province agreed to pay the $800 fee for tuition and reimburse claimants for the cost of books and
materials. In addition, where possible, claimants were given priority for placement in programs of
their choice. The usual admission criteria for the programs still applied, but the Province agreed to
waive the $100 admission fee for academic upgrading. Claimants could also avail themselves of free
assessment and counselling to determine their academic level and to discuss career options and
community college programs that might be of interest or benefit.
Claimants were entitled to receive psychological counselling either through Community
Mental Health Clinics or private counsellors. This benefit was available to anyone who submitted a
claim; eligibility did not depend on validation of the claim. A fund of $5,000 was set up for each
claimant. When that amount was exhausted, a claimant could apply to the Director of the Mental
Health Commission for an additional year, or $5,000 worth, of counselling. Approval would only
be given if the Director received a satisfactory opinion from a private counsellor as to the progress
of the claimant which established the need for treatment and set forth an appropriate plan. There was
no limit to the number of times that a claimant could apply for additional counselling, but the
compensation program policy stated that psychological counselling should be viewed as relatively
Apologies were not originally part of the program. However, the Minister of Justice later
decided to issue apologies on behalf of the Departments of Justice and Solicitor General and the
Province of New Brunswick. According to one representative of the Solicitor General, the apologies
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38Jakubec, A. and C. Loewen, Summaries of Institutional Abuse Models: New Brunswick's Compensation
Summary for Victims of Sexual Abuse (June 27, 1997), p. 4.
were extremely helpful for all victims.38