The Archdiocese of St. John’s is seeking to overturn a Supreme Court of Newfoundland and Labrador decision that released Guardian Insurance from helping cover its settlement with clergy abuse survivors.

On Jan. 17, legal representatives for the Roman Catholic Episcopal Corporation of St. John’s (RCEC) filed documentation with the Court of Appeal of Newfoundland and Labrador to protest Justice Peter Brown's Dec. 20 verdict.

Brown decreed that the RCEC failed to divulge instances of clerical sexual abuse upon applying for a policy with Guardian Insurance (acquired by Intact Financial Corporation in 2001) in 1980 and upon renewing the policy annually until 1985. This failure of disclosure quashed the contract.

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This policy agreement, brokered by Marsh & McLennan Limited, that provided comprehensive general liability coverage had a $5 million limit from Oct. 1, 1980, to Oct. 1, 1982, and $10 million from Oct. 1, 1982, to Oct. 1, 1985.

RCEC solicitors Mark Frederick and Chris Blom of Miller Thomson LLP alleged in the notice of appeal that Brown erred in not assigning proper weight to the evidence “which confirmed that the knowledge of the abuse was not material to a reasonable and prudent insurer.”

Frederick and Blom stated sexual abuse “was not an underwriting factor” for insurance policies “until the late 1980s and early 1990s.” Considering this historical context, “from 1980 to 1984 an insurer would have not anticipated that acts of sexual abuse would result in insurance claims.” They acknowledged that sexual abuse “became a material factor” because of the rise in claims, and later lawsuits, against religious institutions.

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Additionally, Frederick and Blom suggested Brown erred in decreeing RCEC made “a false representation” when it “made no representation as to its knowledge of abuse.” The counsellors insinuated the justice’s nullification decision was a mistake because Guardian Insurance would have both issued and renewed the policy “even if the abuse was disclosed" by the archdiocese.

Brown’s Dec. 20 ruling found that at least six priests working in the Archdiocese of St. John’s were aware of the predatory behaviour of Fr. James Hickey before the policy came into effect in 1980. In September 1988, Hickey pled guilty to 20 charges of sexual assault, gross indecency and indecent assault involving teenage boys while he was a parish priest serving in the Burin Peninsula and around St. John’s.

The nearly 300 abuse survivors who have already received their initial monetary disbursement — plus 59 more plaintiffs who have recently secured the right to compensation upon appeal after having their original claim rejected — not only sought direct liability from the archdiocese, they believed, and both the Court of Appeal of Newfoundland and Labrador and Supreme Court of Canada ultimately found, that the archdiocese is “vicariously liable” for the abuses perpetrated at the Mount Cashel Orphanage during the 1940s, ’50s and ’60s.

The Christian Brothers of Ireland, the operators of the ill-reputed establishment that closed in 1990 and was demolished in 1992, did not have the fiduciary resources to pay the damages as it filed for Chapter 11 bankruptcy in the U.S. in 2011.

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Thus far, the RCEC has amassed $44 million on behalf of abuse survivors by liquidating over 110 property assets and transferring the title, right and interest for 38 schools to the province and the Newfoundland and Labrador English School District. Originally, the RCEC needed to raise $104 million for 292 claimants or their estate.

Now, with 59 extra plaintiffs in line to receive a reward, that number is poised to increase significantly.