Causation And Sexual Assault (Part 3): Causation In Relation To Damages, A Mainstay In Sexual Abuse Cases

This blog is the final installment in a three-part series on causation in the civil sexual abuse context. In Part One, I explored the distinction between causation for liability and causation for damages. Part Two examined the relatively limited application of causation for liability in sexual abuse cases. Now, in Part Three, I turn to causation in relation to damages — a cornerstone of civil claims for sexual abuse and violence. By unpacking key legal principles and examining how courts approach these issues, I will shed light on the complexities of assessing and quantifying damages in these cases.

Returning to the intentional torts of assault and battery, as I said in Part Two, injury is not a requisite element for liability based on these torts. However, to obtain a meaningful award of damages, the extent of the damages caused by the wrongdoing always needs to be proven. The same is true for liability in negligence; once its requisite elements are established, the extent of the damages arising from the negligent conduct must be proven.

Existence of Liability

It is the extent of the damages caused by the wrongdoing, be it intentional or negligent, and not by other factors that must be determined. Returning to the clergy abuse example referenced above — assume the priest is liable for the intentional tort of sexual battery and the bishop is liable in negligence. Both sets of unlawful conduct are necessary causes of the damages suffered by the plaintiff. So having established the existence of liability, one must next establish the extent of the injuries attributable to both defendants’ unlawful conduct.

The question then becomes how to assess or quantify a plaintiff’s damages.

This requires one to consider the difference between a plaintiff’s “original position” and their “injured position," remembering that the purpose of personal injury damages is, notionally, to return the plaintiff to the position they would have been in without the abuse. I say notionally because money can never repair the harm caused by sexual violence, and yet money is all our legal system has to offer. So, if the purpose of damages is to put a victim of sexual assault back in their “original position,” then it stands to reason that the plaintiff cannot be put back in a better position. If their original position was already a compromised one when the abuse happened, then it is to that compromised position that they are to be returned, and not to a better one. It is at this stage that the “crumbling skull” and “thin skull” principles come into play. These are legal principles that speak to the extent of damages.

Again, let’s return to the clergy abuse example. Let’s assume the plaintiff, before they were abused by the priest, suffered from a mood disorder like depression, as well as a learning disability that meant they struggled academically. The defendants will surely argue that the quantum of damages must be reduced to reflect the impact of these two pre-existing conditions. They will advance a “crumbling skull” argument, which will go something like this: Although it’s agreed that the priest’s abuse injured the plaintiff, their pre-existing conditions would have caused them to suffer similar harms regardless of the abuse; as such, the defendants should only have to pay damages that reflect any aggravation or worsening of their harms caused by the priest’s abuse.

When defendants rely on the “crumbling skull” argument, they bear the burden of proving there was a “measurable risk” that other factors apart from the abuse caused the plaintiff’s impaired condition. This is not the easy burden many defendants and their lawyers assume it to be. It requires expert evidence that goes beyond raising a “vague possibility” that the plaintiff’s injuries would have been suffered in any event. The courts have said there has to be “reasonable evidence” of a “material risk” that the plaintiff would have suffered harm notwithstanding the sexual abuse. As one judge put it, it is not enough for a defendant to present evidence that other pre-existing factors may have contributed to the plaintiff's overall condition; rather, “there has to be tangible, cogent evidence establishing a measurable risk that those factors would have — not might have — caused [the plaintiff’s] disorders, even without the sexual abuse” (K.M. v Marson, 2018 ONSC 3493, para 524).

Pre-Existing Conditions

The plaintiff will counter the defendants’ “crumbling skull” argument by invoking the “thin skull” rule, which will go something like this: The plaintiff’s pre-existing conditions made them more vulnerable to being harmed by the abuse, and the defendants must take the plaintiff as they find them. Consequently, the defendants are liable for the entirety of their injuries, and do not get any discount on the damages payable.

For the defendants to prevail with their “crumbling skull” argument, they must prove (yes, the onus of proof is on the defendants here) that there is a “real and substantial possibility” that the pre-existing conditions would have affected the plaintiff's “original position.” If successful, a deduction for the possible impact of this pre-existing condition, regardless of the abuse, will be warranted. Usually, this deduction is framed by the courts in percentage terms.

This raises the question of a deduction from which head of damages? It is reasonable to assume non-pecuniary (general and aggravated) damages might be reduced by pre-existing depression because these damages reflect a plaintiff's pain and suffering and loss of enjoyment of life. So, in the clergy abuse example, one can see how the plaintiff’s pre-existing depression may result in a deduction from their general and aggravated damages award. But what about pecuniary damages like loss of income? Many people with depression have fulfilling and well-remunerated jobs, so it may be a stretch to say pre-existing depression would necessarily have resulted in a loss of income, let alone the extent of the loss of income the plaintiff suffered after being sexually abused.

What about the plaintiff’s pre-existing learning disability in the clergy abuse example? Does it justify a deduction from the damages payable? Again, the question is a deduction from what head of damages? Can the defendants prove a pre-existing learning disability put the plaintiff at a measurable risk of suffering from the depression she experienced post-abuse? This of course would depend on the expert evidence, but many courts have found such evidence to be insufficient to discharge the onus of proof on defendants.

What about the pre-existing learning disability’s impact on damages for loss of income? While it again depends on the expert evidence, one can foresee a stronger argument for a discount to reflect that the plaintiff’s vocational and income earning potentials were at a genuine risk of being reduced by virtue of their pre-existing learning disability.

Conclusion

Causation issues in relation to liability and especially in relation to damages are a critical part of litigating civil claims based on sexual abuse and violence. To understand the evidence that needs to be put forward, including the questions one must put to experts when building a case (or a defence), one must understand the underlying legal principles.

Stay tuned for my article in the forthcoming fall 2025 edition of OTLA’s The Litigator devoted to sexual assault where I will delve into the legal and evidentiary issues surrounding causation in greater detail.

Helpful Decisions on Causation

• B. (M.) v. 2014052 Ontario Ltd, cob Deluxe Windows of Canada, 2012 ONCA 135 (CanLII)

• K. M. v. Marson, 2018 ONSC 3493 (CanLII)

• Anderson v. Molon, 2020 BCSC 1247 (CanLII)

• Lapointe v. Labelle, 2023 ONSC 470 (CanLII)

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The Evolution Of Vicarious Liability In Sexual Abuse Cases (Part 1)

Authored by: Erika Tower and Zahra Vaid.

Background

In Canada, the legal doctrine of vicarious liability can be used to hold organizations liable for the wrongful conduct of their employees, agents and volunteers. The doctrine has been held to apply to sexual misconduct in the context of school boards, religious institutions and volunteer organizations, and in various circumstances, including where it occurred outside of the organization’s premises.

In Part One of this two-part series, we will provide an overview of the legal framework for vicarious liability, examine the background and context for application in sexual abuse cases, the significance for survivors, and the test set out by the Supreme Court of Canada for establishing vicarious liability. Part Two will look at cases decided in the past five years, how the application of the test for vicarious liability has evolved during that timeframe, and what it means for future cases.

For survivors of sexual abuse, vicarious liability is a crucial legal tool. Without a finding of liability against a party with the means to pay compensation, or with insurance coverage to respond to a claim, survivors of sexual abuse are less likely to be able to recover their damages. Holding these organizations accountable also helps encourage better policies and safeguards to prevent future abuse.

The Test

Vicarious liability is not a distinct tort, but a legal theory of liability based on the relationship between the wrongdoer and the entity against which liability is sought. It requires no proof of wrongdoing on the part of the entity.

The test for determining vicarious liability in relation to sexual misconduct was first set out by the Supreme Court of Canada in Bazley v. Curry, [1999] 2 S.C.R. 534 (“Bazley”) and Jacobi v. Griffiths, [1992] 2 S.C.R. 570 (“Jacobi”), and expanded in K.L.B. v. British Columbia, 2003 SCC 51 (“K.L.B.”).

First, the Court must consider whether there is any binding precedent that applies. Where there is not, or there are differing precedents, then the court must proceed to examine the relationship between the wrongdoer and the entity.

This part of the test is described in K.L.B. v British Columbia as requiring that the relationship between the wrongdoer and the entity against whom vicarious liability is sought be sufficiently close as to make a claim for vicarious liability appropriate. This does not require a formal employment relationship. What is key is whether the entity, institution or principle was able to “manage the risk” posed by the wrongdoer.

The next step is the “strong connection test,” which was set out in Bazley and Jacobi. It requires a strong connection between the wrongful acts and the conduct authorized by the organization. In other words, the Court must ask: is there a sufficient connection between the creation or enhancement of a risk and the wrong that occurred? Factors that may be considered, but are not limited to:

a) the opportunity the enterprise afforded the employee to abuse his or her power;

b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

d) the extent of power conferred on the employee in relation to the victim; and

e) the vulnerability of potential victims to wrongful exercise of the employee’s power.

Courts must also evaluate broader policy considerations, including whether fair and effective compensation and deterrence of future harm will be achieved by a finding of vicarious liability.

The doctrine of vicarious liability remains an essential tool for holding organizations accountable, providing survivors of sexual misconduct with a means of recovering damages and prompting the development of safeguards against future abuse.

In the next part of this series, attention will turn to key judicial decisions from the past five years that illustrate how vicarious liability has been applied in cases of sexual misconduct, offering further insights into its evolution and impact.

This article was originally published on Law360Canada, part of LexisNexis Canada Inc.

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Causation And Sexual Assault (Part Two): Causation For Liability Has Limited Application In Sexual Abuse Cases

This blog is the second installment in a three-part series exploring causation in the civil sexual abuse context. In part one, I laid the foundation by distinguishing causation for liability from causation for damages. Now, I turn my focus to causation for liability — a concept that has limited application in sexual abuse cases. By examining the nature of claims and the constituent elements of different causes of action, I will explain why causation for liability is often less relevant in the sexual abuse context than is causation for damages.

One must remember that causation for liability purposes is only a relevant consideration for certain types of claims, whereas causation for damages purposes will always be relevant where compensation is being claimed for sexual abuse and violence.

Balance Of Probabilities

So, the starting point for determining if causation for liability is relevant is to consider the nature of the claim, or the cause of action being asserted. Each cause of action has constituent elements that must be proven on a balance of probabilities. For the intentional torts of assault and battery, there is no requirement to prove that harm was caused to make out a viable claim. Rather, one must prove the defendant:

• in the case of assault – intended to create an apprehension of imminent and offensive physical contact; and

• in the case of battery – intended to and did apply physical contact directly to the plaintiff.

Compare that to negligence and its constituent elements: the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the plaintiff suffered damages which were a reasonably foreseeable consequence of the breach, and the defendant’s breach caused those damages. Importantly, intention is not a requirement for negligence, but damages that were caused by the breach of duty is.

Causation Issue For Negligence

Put simply, the causation issue for negligence is whether or not the defendant’s breach made a difference to the outcome. For example, in a clergy sexual abuse case, if the bishop was aware of his priest’s prior history of sexualized misconduct, but failed to take any steps to prevent the plaintiff, to whom the bishop owed a duty of care, from falling prey to the priest, then there is causal connection between the bishop’s inaction and injury to the plaintiff.

On the other hand, if the injury to the plaintiff by the priest had already happened when the bishop became aware of his priest’s history of misconduct, then the bishop’s inaction cannot be said to have caused the injury.

In this latter scenario, the elements of negligence cannot be established, and the negligence claim will fail. In this circumstance, so too will any claim for damages.

Since the majority of personal injury claims are based in negligence, it’s no surprise that much legal ink has been spilled over what a plaintiff must prove to establish causation for liability in negligence. This ink, in turn, has spilled into the treatment of damages in sexual abuse cases, even though these cases rely much more on the intentional torts than on negligence. The result is confusion and uncertainty about how to deal with causation in sexual assault.

Two Tests For Causation

What is often overlooked is that there are two tests for causation, not one:

• The first relates to what must be established to make out liability in negligence, which will only sometimes be relevant in a sexual assault case;

• the second relates to assessing damages after liability has been determined, be it in negligence, for intentional torts, and/or for vicarious liability based on negligence or the intentional torts, and it will always be relevant.

As we’ve seen, causation for liability plays a limited role in sexual abuse cases, which depends on the type of claim being asserted. In the final part of this series, I will shift my attention to causation in relation to damages — a cornerstone of civil liability for sexual abuse.

Join me as I explore how courts approach this critical issue and the principles that guide the assessment of damages.

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Causation In Sexual Assault: A Confused And Confusing Area

Part one: Does our civil justice system give perpetrators of sexual assault a discount on the compensation they must pay if their victims had suffered prior traumas? What about where a survivor of sexualized violence goes on to experience later traumas — such as a coercive and violent intimate partner relationship — does the original perpetrator have to compensate for harms that flow from these later traumas? Do common life stressors unrelated to sexual abuse, such as the death of a family member, a miscarriage, or workplace problems, whether occurring before, during or after the abuse, reduce a survivor’s entitlement to damages?

These are the types of vexing causation questions that commonly arise in the context of civil liability for sexual abuse. The answers to these questions will ultimately depend on the facts and on the evidence, but there are legal principles that underpin the answers and are essential to know.

This blog marks the beginning of a three-part series where I’ll unpack these causation issues in the civil sexual abuse context. Across these posts, I’ll be laying out the key legal principles, exploring how courts have grappled with them, and highlighting areas where confusion persists. The goal is to provide clarity on a complex but critical topic — one that will also be explored in greater depth in my forthcoming article for the fall 2025 edition of the OTLA (Ontario Trial Lawyers Association) magazine, The Litigator. Given that April is Sexual Assault Awareness Month, it seems like the perfect time to begin this discussion.

Statement of the applicable rules

Causation can be a tricky, and in my experience, misunderstood, issue in the civil sexual abuse context. We have separate rules that apply to causation for liability purposes and to causation for damages purposes. These rules are often confused — by lawyers and by courts alike. My goal is to provide a grounding that will encourage careful — not rote — consideration tailored to each individual case about what needs to be proven and how this is to be achieved.

Put succinctly, the causation rules are as follows.

For liability purposes:

The “but for” rule governs. It asks whether, but for a defendant’s unlawful conduct, the plaintiff would not have suffered the injuries in question. Even though there may be several tortious or non-tortious causes of injury, this rule says that so long as the defendant’s conduct is a cause of the plaintiff’s damage, the defendant is fully liable for that damage.

Thus, causation for liability purposes is about connecting a defendant’s fault to the plaintiff’s harm. Without this causal connection, there is no liability.

But once causation and, therefore, liability are established, there must then be a separate inquiry with respect to damages and what caused these.

For damages purposes:

The “original position” rule governs. A defendant need not put the plaintiff in a better position than their “original position.” This means the defendant does not have to compensate the plaintiff for any damages they would have suffered regardless of the unlawful conduct.

This rule is focused on the extent of the harm caused by the defendant, and on repairing that harm by putting the plaintiff in the same position they would have been in had the defendant not engaged in unlawful conduct.

Just because a defendant is said to be responsible for the “entire injury” based on causation for liability does not mean the defendant has to put the plaintiff in a better position than their “original position.” This, I find, is one area where confusion arises. “Entire injury” must be understood not as comprising all of the problems, conditions and disorders a plaintiff may be suffering at a particular time post-abuse, but as the difference between the plaintiff’s “original position” and their with-sexual abuse “injured position.” The Ontario Court of Appeal put it this way: “While a finding of causation [for liability] equates to responsibility for the entire injury, a defendant is not required to put the plaintiff in a better position than his or her original one.” (M.B. v. Deluxe Windows, 2012 ONCA 135 (CanLII), para 32).

Understanding causation is crucial when navigating civil liability for sexual abuse. While this post has laid the groundwork by distinguishing causation for liability from causation for damages, the next installment in this series will delve deeper into how causation for liability actually has quite limited application in sexual abuse cases. Stay tuned as I explore the nuances and challenges that arise in this context.

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Prosecuting Civil Tort Claims In The Context Of Family Proceedings Following The Ahluwalia Onca Decision

This article was updated on April 2, 2025, and originally published by Law360 Canada, part of LexisNexis Canada Inc.

Since the Ontario Court of Appeal decision in Ahluwalia v. Ahluwalia[1] (“Ahluwalia”), in which the creation of a new tort of family violence was rejected as unnecessary because existing torts are sufficient, there has been some uncertainty about how civil claims arising from intimate partner violence (“IPV”) and abuse should be dealt with in the context of family law proceedings. This is not the last word on the tort of family violence, as the Supreme Court of Canada has granted leave to appeal the ONCA decision. Regardless of the final outcome in Ahluwalia, issues surrounding how to most effectively and efficiently prosecute civil tort claims in the context of family proceedings will remain a live issue.

As the ONCA stated in Ahuluwalia:

“Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.”[2]

It is clear based on the pervasiveness of IPV, and the developing law in response, that we will continue to see an increase in the number of civil tort claims being pursued by survivors of IPV, particularly once the relationship ends and family law proceedings are initiated. In the recent decision Barreto v. Salema[3] (“Barreto”), Justice Susan Vella of the Ontario Superior Court of Justice provides useful guidance on how these cases should be approached, and valuable insight into how they will be viewed and assessed by the Court.

Factual Background in Barreto

Ms. Barreto (the “Wife”) and Mr. Salema (the “Husband”) were married in 2003 and separated in 2020, with no children of the marriage. A 9-day hybrid trial of the family law and tort matters proceeded before Justice Vella in January and February 2024. The family law issues to be decided included divorce, spousal support, and disposition of the matrimonial home. Also at issue were tort claims raised by the Wife, which included intentional infliction of emotional distress, breach of public disclosure of private facts and of confidence, assault and battery.

The term “gaslighting” was used by the Wife to describe the Husband’s pattern of behaviour which included secretly communicating to her family in India that she was violent, abusive, mentally ill and suicidal. The Husband also had a pattern of telling the Wife that she was the one who abused him, and that he only used force against her to protect himself from her physical abuse of him and to stop her from self-harming. Justice Vella adopted the “gaslighting” terminology as a descriptive term only.

Preliminary Considerations and Framework

In setting out the framework for her decision, Justice Vella confirmed, as in Ahluwalia, that where family and civil proceedings are heard together, the trial judge should start with a determination of the financial claims arising from the marriage, specifically beginning with any of those arising from statute, before assessing damages for the tort claims. This sequence considers that statutory entitlements may inform the damages arising from the IPV-related tort damages assessment.

Justice Vella accordingly begins by considering the family law claims raised by both the Wife and the Husband, the findings of which are largely irrelevant for the purpose of this article. Turning next to the civil claims, Justice Vella first provides guidance on how to approach credibility assessments in claims involving IPV and then addresses a number of dangerous myths about IPV that must be dispelled.

Regarding the credibility assessment, Justice Vella adopted “the framework outlined in Faryna v. Chorny[4] and developed in subsequent cases, recognizing that trauma can impact one’s ability to recount the traumatic incidents.”[5] Her Honour also highlighted the importance of corroborating evidence from witnesses and contemporaneous documentary evidence.

The myths about IPV that Justice Vella said must be dispelled include:

1. The partner did not leave the relationship until now, and therefore there was no abuse or mistreatment;

2. The partner must have consented to the offensive treatment because she/he/they did not leave the intimate relationship;

3. The partner did not complain to anyone in authority, his/her/their family or others of the offensive treatment or abuse and therefore it did not happen; and

4. The partner did not behave in a certain manner in response to the alleged abuse or mistreatment and therefore cannot be believed.[6]

Liability Analysis

With these considerations in mind, Justice Vella assessed the evidence presented by both sides and found the Wife’s version of events to be more believable than the Husband’s. The Wife called witnesses who corroborated her version of events (family members, friends, therapist) and produced contemporaneous documentary evidence to support her claims (texts, emails, etc.).

The trial judge did not find the Husband to be a credible or believable witness — his versions of events were vague and inconsistent. The trial judge also drew an adverse inference against the Husband — who neither called the witnesses that he claimed supported his version of events, nor provided an explanation for this decision. The adverse inference was that these potential witnesses would not have supported his evidence even if they had testified at trial.

Ultimately, Justice Vella found that the Wife satisfied the elements of the tort of assault, battery, and intentional infliction of emotional distress. However, her claim for public disclosure of private facts was dismissed because the allegations under this tort were better addressed by intentional infliction of emotional distress.

Damages

Justice Vella began her damages assessment by reviewing the general function of general and aggravated damages and the factors to be considered in determining the appropriate quantum.[7] It is acknowledged that damages arising from claims of IPV have been historically low, but “the courts’ recognition of the insidious harms by IPV is evolving much like it did with respect to civil sexual assault claims, which were originally very modest but have evolved considerably.”[8] Accordingly, Justice Vella states that reference to civil sexual assault damages awards is helpful as a guide because in both types of cases, “the dominant harms experienced generally tend to be psychological and accompanied by a betrayal of trust.”[9] Justice Vella cites the range of non-pecuniary/general damages for adult-on-adult sexual assault set out in Zando v. Ali[10] of $144,000 to $290,000 in 2017 dollars, which provides a useful general framework for how to assess psychological impacts committed within a betrayal of trust.[11] Inflation adjusted to 2024 dollars, the range is $177,357.80 to $357,178.90.

Applying this range to the case at bar, Justice Vella concluded the appropriate general damages award in the case before her was $150,000, $50,000 of which she attributed to aggravated damages in recognizing the “pattern of psychological manipulation perpetrated over a lengthy time by a spouse resulting in a profound betrayal of trust.”[12] Although the Husband argued that the Wife's current psychological symptoms, disorders and effects were caused by childhood abuse, it was found that the harms established by the Wife were solely as a result of the Husband’s abusive conduct. Justice Vella also noted, in reference to the childhood abuse, that the Wife “showed her resilience to any adverse impacts that mistreatment may have had by excelling in university and her job as a psychologist prior to her marriage.”[13]

A punitive damages award was made against the Husband in the amount of $10,000, having regard to “the compensation awarded, the reprehensible nature of the misconduct perpetrated, the prevalence of IPV […], the lack of remorse, and the means of Mr. Salema.”[14] Notably, this award for punitive damages incorporates the principle of deterrence by accounting for the “prevalence of IPV” in general.

We note that in Zunnurain v. Chowdhury[15], another decision involving civil tort claims in the context of family law proceedings which released shortly after Barreto, Justice Agarwal awarded $200,000 in damages to the Wife for assault, battery, and intentional infliction of mental suffering, $175,000 of which was for compensatory and aggravated damages and $25,000 for punitive damages. This award is in line with Justice Vella’s comments about the appropriate range of damages in these cases.

Other Key Takeaways

The following are other key takeaways from Justice Vella’s lengthy and comprehensive decision in Barreto:

1. The importance of expert evidence regarding harms to achieve higher general damages awards: Although it is not necessary to lead expert evidence of a psychiatric disorder to prove psychological harm, expert evidence will make it much easier to establish a higher general damages award. The Wife called an expert psychologist who diagnosed her with Post-Traumatic Stress Disorder (PTSD), agoraphobia and Major Depressive Disorder. At the trial, the psychologist testified that the Wife’s mental health disorders and symptoms were caused by the IPV she suffered at the hands of the Husband. Justice Vella’s damages award in Barreto was $150,000, compared to the $100,000 award in Ahluwalia, which Her Honour explains is distinguishable based on the fact that in Ahluwalia “no expert medical or psychological evidence was led to support the spouse’s claim for damages.”

2. Limitations Act defences can be overcome in the context of civil claims arising from IPV and abuse: Claimants can rely on the discoverability principle for claims of intentional infliction of emotional distress, and the exception in 16(1)(h.2) of the Limitations Act for claims relating to physical assault and battery which states that there is no limitation period for assault claims if, at the time of the assault, the claimant and the person who committed the assault had “an intimate relationship.”

3. In order for any tort claim to be considered by the Court, the torts themselves and their requisite elements must be pleaded: Although there was an incident of a sexual nature referenced at trial, Justice Vella declined to consider sexual assault, as it was not in the Wife’s pleading. However, as the requisite elements of the torts of assault and battery were pleaded, an order was made replacing the initially pled non-existent tort of family violence, with the proper existing torts of assault and battery.[16]

Additional Issues to Consider

Many family lawyers oppose or are critical of joining or hearing together civil tort claims for damages arising from IPV and abuse within family law proceedings. This is likely largely because the family law framework has much less arduous discovery obligations than civil proceedings and has systems in place to ensure that family law claims move forward as quickly as possible. There is also a strong movement towards a more collaborative approach to family law claims. Civil claims, in contrast, come with much broader documentary and oral discovery obligations imposed by the Rules of Civil Procedure, tend to move along more slowly, and are often highly adversarial by nature.

In our experience so far working on cases where civil tort claims and family law issues are being joined or heard together, the advantages outweigh the disadvantages. The most significant benefit is the ability for civil damages to be paid out of the family property and assets. For example, in Barreto, Justice Vella ordered that the payment of damages would be deducted from the Husband’s share of the net sale proceeds from the matrimonial home. Typically, the biggest challenge when pursuing civil claims against individuals for torts arising out of IPV and abuse is that there is no easy way to satisfy a judgment for damages. Family court proceedings not only provide for disclosure of assets and property, something one is not entitled to in a civil court proceeding, but also a forum in which a set-off can take place to account for damages and pre-judgment interest on these damages when tort claims are found to have merit.

An additional challenge to consider going forward is how to reconcile family law claims for spousal support with civil claims for income loss, as there is obvious overlap, and double recovery must be avoided. In Barreto, Justice Vella made it clear that the “income replacement component” of the Wife’s claim was “adequately compensated by virtue of the spousal support claim awarded.”

What’s Next?

Family and civil lawyers alike who act for survivors of IPV, as well as those who defend these claims, anxiously await the outcome of the appeal of Ahluwalia to the Supreme Court of Canada. Given that the Court has now set out in Barreto how to practically apply the existing torts to these cases, we expect that the SCC will likely uphold the ONCA’s decision to reverse the trial judge’s decision creating a new tort of family violence.

Regardless of whether the SCC decides there is or is not a separate tort of family violence, lawyers and the courts need to be prepared to deal with the “epidemic” of IPV in our society. There is a need for informed discussion about the many legal issues that this problem present, and we call for Continuing Legal Education on the issues that brings together family and civil lawyers and judges, so these issues can be better and more efficiently and consistently navigated. There is similarly an overlap between criminal and civil court proceedings when dealing with sexual and physical forms of abuse and harassment, which has already been extensively considered and addressed by courts and lawyers alike.[18] Now it is time — if not overdue — for the same dialogue to take place between the family and civil bars and benches.

See our blog post here for a refresher on the ONCA decision ahead of next year’s SCC hearing in Ahluwalia, tentatively set to be heard the week of February 10, 2025.

Our civil sexual abuse and assault team frequently consults with and assists family lawyers and survivors of IPV in navigating civil tort claims arising from IPV and abuse in the context of family law proceedings. Please feel free to reach out for a consultation if you would like more information.

[1] 2023 ONCA 476, leave to appeal to SCC granted, 41061 (May 16, 2024).
[2] Ibid. at para. 1.
[3] Barreto v. Salema, 2024 ONSC 4972.
[4] [1952] 2 D.L.R. 354.
[5] Barreto, supra note 3, at para. 161.
[6] Barreto, supra note 3 at para. 166.
[7] Barreto, supra note 3 at paras. 432-434.
[8] Barreto, supra note 3 at paras. 436-437.
[9] Ibid at para. 440.
[10] 2018 ONCA 680.
[11] Barreto, supra note 3 at paras. 440-441.
[12] Ibid at para. 448.
[13] Ibid at para. 429.
[14] Ibid at para. 452.
[15] 2024 ONSC 5552.
[16] Barreto, supra note 3 at para. 156.
[17] Barreto, supra note 3 at para. 444.
[18] See, for example, “Criminal v. Civil: How the Criminal Process Can Impact a Parallel Civil Process” by Elizabeth Grace.

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Risk Of Re-Traumatization In Sexual Assault Cases May Result In Variation Of A Party's Inherent Rights In A Civil Action

Lawyers are accustomed to treating a party’s right to be present at the other party’s examination for discovery and to conduct oral examination of the opposing party as inviolable. In fact, these rights are not inviolable. In the appropriate circumstances, they will be varied to ensure the civil court process does not cause harm.

In the Ontario Superior Court decision of Antonopoulos v. the City of Toronto, Associate Justice Abrams granted a party’s request that the alleged perpetrator of her sexual assault be excluded from her examination for discovery on the basis that his presence would be traumatizing and could lead to a significant setback in her mental health.

This decision explains that while parties to an action have an inherent right to be present during the examination for discovery of other parties, the court may exercise its discretion to exclude a party when it is satisfied, on a balance of probabilities, that there is cause to justify the exclusion. For an exclusion order to be granted, such cause must be realistic and substantial and must result in prejudice to the party being examined, or be necessary to secure the ends of justice.

The party seeking an exclusion order, such as the alleged victim in this decision, bears the onus to demonstrate that this order is necessary to secure the ends of justice. In making her decision, Abrams A.J. considered prior examples where exclusion orders were granted, including where the evidence was likely to be tailored or parroted, a party was likely to be intimidated, or the proceedings were likely to be disturbed or disrupted. A further example, in keeping with this decision, is where a party is likely to be traumatized or mentally injured by the presence of the other party.

The alleged victim in the Antonopoulos case presented evidence from her treating psychologist confirming her diagnoses of Major Depressive Disorder and Post-Traumatic Stress Disorder (PTSD) and drawing a direct connection between her interactions with the alleged perpetrator and these diagnoses. The alleged victim herself also presented evidence that she was extremely fearful of seeing the alleged perpetrator and would find his presence intimidating in the context of being questioned about their interactions, including the alleged sexual assault. Her treating psychologist provided her clinical opinion that it would be significantly re-traumatizing for the alleged victim to be examined in the presence of the alleged perpetrator and this experience was highly likely to result an exacerbation of her PTSD and depressive symptoms.

In this decision, Abrams A.J. recognized the challenge in assessing these issues on an interim basis, prior to a final determination at trial. She acknowledged the alleged perpetrator denied having sexually assault the alleged victim and challenged the fairness of the investigation into the sexual assault by his former employer resulting in his termination for cause. Abrams A.J. also acknowledged the alleged perpetrator’s comments that he would not engage in any inappropriate behaviour or seek to intimidate the alleged victim during her examination. Nevertheless, on balancing this evidence with the evidence of the potentially adverse impact on the alleged victim’s mental health, Abrams A.J. found there was reason to believe the alleged perpetrator’s presence at the alleged victim’s discovery would present a real and substantial probability that intimidation, whether or not intended, was likely to occur.

More recently, in a 2024 hitherto unreported decision of the Ontario Superior Court of Justice, Justice Barnes granted a police officer’s request to be examined by written discovery in place of an oral examination. Barnes J. found there was compelling and persuasive psychological evidence that an oral examination was likely to be traumatizing and exacerbate the party’s PTSD and depressive symptoms. Moreover, he found that the other party’s procedural right to discover the case they had to meet could be satisfied by written discovery. Though this case did not involve allegations of sexual assault, but rather a police officer with work-related trauma, it is an important precedent for victims of sexual assault who may also be harmed by an oral examination for discovery.

Antonopoulos and this unreported decision represent an important acknowledgement by the courts that our civil court system can be significantly re-traumatizing to those who – by choice or legal effect – are made to participate in it. In these decisions, the courts acknowledge that a party’s inherent rights are not violable. The risk of harm to one party is an important factor to be weighed against protecting the inherent rights of another party.

A key takeaway for both plaintiff and defence lawyers is to keep an open mind when it comes to evaluating how to best protect their client’s mental health while still accomplishing the necessary procedural steps in a civil lawsuit. If a party risks serious injury from the legal process, their lawyer should consider moving for accommodation and ensure they are adducing compelling evidence in support of this request.

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Ontario Court Rejects Stereotypical Myths And Confirms Single Sexual Assault Against Adult Warrants High Damages

Because the majority of civil sexual assault cases are settled out of court, it is always helpful when a plaintiff has the courage and tenacity to pursue their claims right through to trial. The plaintiff who does so does a service to other litigants and potential litigants by adding to the body of precedent that informs not only future court decisions, but also settlement negotiations in other cases.

The recent addition of BE v. OR, 2024 ONSC 6193 to this body of precedent confirms that a single occasion of sexual assault against an adult victim can attract very significant non-pecuniary damages that, in Ontario at least, may also be supplemented by a large pre-judgement interest award.

THE FACTS

BE v. OR, 2024 ONSC 6193, decided by Justice C.J. Brown who sits in Toronto, was released on November 12, 2024. It involved an assault committed just over nine years prior, in September 2015.

The plaintiff was 29 years old when he was sexually assaulted by the defendant, who was both his older neighbour and a lawyer. Before the sexual assault, the parties’ families were on friendly terms. The plaintiff was accustomed to assisting the defendant with small tasks on request.

One evening, the defendant asked if the plaintiff would give him a drive. The plaintiff agreed, but when he arrived at the defendant’s house to pick him up, he found the defendant and another man there. The plaintiff was led to the basement, where he was sexually assaulted by the defendant and the other man. The sexual assault included repeat fellatio on the plaintiff.

The defendant denied the plaintiff’s allegations and responded to the Statement of Claim with a Counterclaim against the plaintiff for sexual assault. While some say the best defence is a good offence, that was not the case here.

HE SAYS VS. HE SAYS: CREDIBILITY & RELIABILITY

The dispute between the parties was a classic one requiring the trial judge to consider diametrically opposed versions of events and assess each party’s and their witnesses’ credibility and reliability.

The trial judge, in a textbook summary of the factors that enter into assessing credibility and reliability, favoured the plaintiff’s over the defendant’s evidence.

Regarding the plaintiff, the judge wrote:

“I found the evidence of BE to be straightforward and candid. His answers were intelligent and thoughtful. He was quiet and somewhat timid in testifying. He testified with respect to the events surrounding his adulthood and the sexual assault without attempting to avoid answering questions. He was not defensive or argumentative, but was forthright in his testimony. Where he did not know an answer, he candidly stated this. His evidence was not contradicted by the documentary evidence. His answers were consistent in examination in chief and in cross-examination.

I found his evidence to be reliable and find him to be credible.”

In juxtaposition, the judge wrote about the defendant:

“OR’s evidence was guarded, defensive and argumentative. He was evasive and attempted to avoid answering questions that did not fit his narrative or the theory of his case. He attempted to answer around or explain away certain facts and evidence. He obfuscated when faced with difficult questions. His answers were often not consistent with the documentary evidence. He would continue to deny facts despite the documentary evidence shown to him which contradicted his answers. In these cases, he would attempt to work around or explain away the contradictory documentary evidence.

OR refused to admit to reasonable facts and was impeached in cross-examination on prior inconsistent statements. He could not recall or would not admit to facts despite being shown contemporary text messages that he had sent. In some instances, he responded to material evidence declaring it to be fraudulent or made up.

His evidence throughout was defensive and argumentative. I find OR’s evidence to be unreliable and I do not find him to be credible.”

These statements are ones I intend to share going forward with clients and witnesses when I prepare them for examination because these words by a judge will, I hope, bring home the point I always make about how essential it is to be candid, responsive, modest and not defensive when being examined under oath.

CONSENT

The torts at issue in BE v. OR included assault and battery and the intentional infliction of mental suffering.

After explaining that in a civil case the defence of consent will defeat the tort of battery only where the defendant can prove they acted with the plaintiff’s consent, the trial judge in BE v. OR cited Supreme Court of Canada authority for her concise and to the point statement that “silence, ambiguous conduct or a lack of objection does not establish consent.”

These are words defence counsel in particular should be mindful of. I have previously written about the defence of consent in civil cases, and it is my experience that consent arguments are too often being advanced in circumstances where there is no credible basis for doing so if the law of consent were truly understood.

MYTHS & STEREOTYPES

The trial judge in BE v. OR rejected the defendant lawyer’s arguments that the plaintiff, by freezing and not knowing what to do while being assaulted, did not act as he should have, or as the “common man” would have done.

Off the top of my head (and I have been working in the sexual abuse field for about 30 years now), I cannot think of another reported sexual assault decision involving an adult male victim. I have little doubt that the arguments leveled against the male plaintiff in BE v. OR were gendered ones because he is male and was viewed as not responding in the “manly” ways deemed appropriate in a male-dominated, patriarchal society and culture.

Brown J. strongly rejected these kinds of arguments, finding them to be based on stereotypical myths about a sexual assault victim’s expected behaviour. She found the plaintiff was traumatized by the events in the defendant’s basement, did not consent to being sexually touched, and she concluded the defendant had committed the torts of assault and battery, as well as the intentional infliction of mental suffering.

NON-PECUNIARY DAMAGES & PRE-JUDGMENT INTEREST

The judge in BE v. OR concluded on the evidence that, as a result of the defendant’s sexual assault, the plaintiff had suffered psychological, physical and economic harm. She awarded the plaintiff general and aggravated damages totalling $300,000.

The general and aggravated damages award of $300,000 in BE v. OR is in keeping with Zando v. Ali, 2018 ONCA 680, where the plaintiff, an adult female victim, was awarded $175,000 (in 2017 dollars) as general and aggravated damages, which is the equivalent of about $217,000 in 2024 dollars once adjusted for inflation. In upholding this award, the Court of Appeal in Zando v. Ali referred with approval to the range the trial judge had identified as appropriate for adult, single incident sexual assault, being $144,000 to $290,000 in 2017 dollars, or $178,500 to $360,000 in 2024 dollars.

In Zando v. Ali, there was no evidence of long-term harm to the plaintiff. In BE v. OR there was. In other words, the higher amount awarded for general and aggravated damages in BE v. OR reflects the pronounced negative impacts, many of them lasting, that the sexual assaults had on the plaintiff.

Importantly, the trial judge in BE v. OR fixed pre-judgment interest on her non-pecuniary damages award of $300,000 at 5% per annum from the time the plaintiff reported the sexual assault to his doctor in 2015, amounting to roughly nine years, and by my calculation, approximately $135,000.

This is not the first time an Ontario court has made a large pre-judgment interest award in a sexual abuse case. In CO v. Williamson, 2020 ONSC 3874, an historical case I took to trial, a teenage victim of sexual assault was awarded $300,000 (in 2020 dollars) for general and aggravated damages, plus pre-judgment interest of just over $175,000 (in that case, calculated at the rate of 2.5% per annum for a period of roughly 23.5 years).

When CO v. Williamson was decided in 2020, there was an emerging belief that the courts should exercise their discretion to fix interest rates on non-pecuniary damages at less than the presumptive 5% rate prescribed by Rule 53.10 of Ontario’s Rules of Civil Procedure. Those days are now gone after the Ontario Court of Appeal recently reaffirmed that the 5% interest rate applies unless evidence and special circumstances provide a basis for departing from this rule: see Henry v. Zaitlen, 2024 ONCA 614 and Aubin v. Synagogue and Jewish Community Centre of Ottawa, 2024 ONCA 615.

In my experience, defendants and their lawyers often recoil at the prospect of such large amounts for interest, arguing these amounts cannot possibly be justified since they approach or possibly even exceed the underlying damages award. The time for such denial is over.

HIGH-WATER MARK FOR PUNITIVE DAMAGES

The trial judge in BE v. OR expressed her condemnation of the defendant’s conduct, both during his abusive interaction with the plaintiff and during the litigation, by making a punitive damages award of $250,000.

This represents if not the highest punitive damages award against an individual defendant perpetrator of sexual assault, certainly a high-water mark for such damages.

Indeed, in CO v. Williamson, 2020 ONSC 3874, mentioned above, the trial judge indicated he would have been inclined to award $150,000 as punitive damages had this amount been requested. Instead, he awarded $100,000, which is what the plaintiff had asked for based on then-existing precedent.

Where an individual defendant has not been otherwise punished, such as by the criminal courts, and the defendant takes the matter to trial, that defendant takes the risk of a large punitive damages award being made against them as an expression of the court’s condemnation for their misconduct, and possibly also for the manner in which they conducted the litigation. Lawyers acting for such individuals need to be alert to this possibility and warn their clients about the risk they face.

CONCLUSION

Total damages awarded in BE v. OR amounted to $685,052. In addition to the general and aggravated damages of $300,000, amounts for pass loss of income and past and future psychological care were awarded. With pre-judgment interest added, the judgment for damages and interest is just over $800,000. With the substantial indemnity costs also awarded by the trial judge, the defendant is looking at a judgment against him totalling over $1 Million.

It bears remembering that the defendant will not be able to escape payment by declaring bankruptcy, because s. 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act, RSC 1985, c. B-3 does not allow a person to be discharged from a civil judgement debt based on sexual assault.

Without question, BE v. OR is a welcome and needed addition to the body of caselaw that deals with adult survivors of sexual assault and the compensatory and punitive damages to which they are entitled. It should also serve as a powerful deterrent to relying on the stereotypical myths that surround the “expected” behaviours of “real” victims of sexual assault that are so often used to try and discredit them, especially if they were teenagers or adults at the relevant time.

The significant amount of general and aggravated damages awarded based on a single sexual assault and the pre-judgment interest on those damages confirms that single incident cases involving adults should be taken seriously by defence counsel. This applies not only to those acting for the individuals alleged to have committed such sexual assaults, but also, where applicable, to those representing organizational defendants which may be jointly and severally liable with the individual perpetrator.

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Prosecuting civil tort claims in context of family proceedings following Ahluwalia appeal

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.

Since the Ontario Court of Appeal decision in Ahluwalia v. Ahluwalia , 2023 ONCA 476, (Ahluwalia), in which the creation of a new tort of family violence was rejected as unnecessary because existing torts are sufficient, there has been some uncertainty about how civil claims arising from intimate partner violence (IPV) and abuse should be dealt with in the context of family law proceedings.

This is not the last word on the tort of family violence, as the Supreme Court of Canada has granted leave to appeal the Ontario Court of Appeal decision. Regardless of the final outcome in Ahluwalia, issues surrounding how to most effectively and efficiently prosecute civil tort claims in the context of family proceedings will remain a live issue. As the Ontario Court of Appeal stated in paragraph 1 of Ahluwalia:

“Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.”

It is clear, based on the pervasiveness of IPV and the developing law in response, that we will continue to see an increase in the number of civil tort claims being pursued by survivors of IPV, particularly once the relationship ends and family law proceedings are initiated.

In the recent decision of Barreto v. Salema, 2024 ONSC 4972 (Barreto), Justice Susan Vella of the Ontario Superior Court of Justice provides useful guidance on how these cases should be approached and valuable insight into how they will be viewed and assessed by the court.

Factual background in Barreto

Liesl Ana Barreto (the wife) and Savio Salema (the husband) were married in 2003 and separated in 2020, with no children of the marriage. A nine-day hybrid trial of the family law and tort matters proceeded before Justice Vella in January and February 2024. The family law issues to be decided included divorce, spousal support, and disposition of the matrimonial home. Also at issue were tort claims raised by the wife, which included intentional infliction of emotional distress, breach of public disclosure of private facts and confidence, and assault and battery.

The term “gaslighting” was used by the wife to describe the husband’s pattern of behaviour, which included secretly communicating to her family in India that she was violent, abusive, mentally ill, and suicidal. The husband also had a pattern of telling the wife that she was the one who abused him, and that he used force against her only to protect himself from her physical abuse of him and to stop her from self-harming. Justice Vella adopted the “gaslighting” terminology as a descriptive term only.

Preliminary considerations and framework

In setting out the framework for her decision, Justice Vella confirmed, as in Ahluwalia, that where family and civil proceedings are heard together, the trial judge should start with a determination of the financial claims arising from the marriage, specifically beginning with any of those arising from statute, before assessing damages for the tort claims. This sequence considers that statutory entitlements may inform the damages arising from the IPV-related tort damages assessment.

Justice Vella accordingly began by considering the family law claims raised by both the wife and the husband, the findings of which are largely irrelevant to the purpose of this article. Turning next to the civil claims, Justice Vella first provided guidance on how to approach credibility assessments in claims involving IPV and then addressed a number of dangerous myths about IPV that must be dispelled.

Regarding the credibility assessment, Justice Vella adopted “the framework outlined in Faryna v. Chorny, [1952] 2 D.L.R. 354 ... and developed in subsequent cases, recognizing that trauma can impact one’s ability to recount the traumatic incidents” (Barreto, para. 161). Justice Vella also highlighted the importance of corroborating evidence from witnesses and contemporaneous documentary evidence.

The myths about IPV that Justice Vella said must be dispelled include:

1. the partner did not leave the relationship until now and, therefore, there was no abuse or mistreatment;

2. the partner must have consented to the offensive treatment because she/he/they did not leave the intimate relationship;

3. the partner did not complain to anyone in authority, his/her/their family, or others of the offensive treatment or abuse and, therefore, it did not happen; and

4. the partner did not behave in a certain manner in response to the alleged abuse or mistreatment and therefore cannot be believed. (Barreto, para. 166)

Liability analysis

With these considerations in mind, Justice Vella assessed the evidence presented by both sides and found the wife’s version of events to be more believable than the husband’s. The wife called witnesses who corroborated her version of events (family members, friends, therapist) and produced contemporaneous documentary evidence to support her claims (texts, emails, etc.).

The trial judge did not find the husband to be a credible or believable witness — his versions of events were vague and inconsistent. The trial judge also drew an adverse inference against the husband because he failed to call numerous witnesses whom he claimed supported his version of events and his defence of the wife’s claims.

Ultimately, Justice Vella found that the wife satisfied the elements of the tort of assault, battery, and intentional infliction of emotional distress. However, her claim for public disclosure of private facts was dismissed because the allegations under this tort were better addressed by intentional infliction of emotional distress.

Damages

Justice Vella began her damages assessment by reviewing the function of general and aggravated damages and the factors to be considered in determining the appropriate quantum. (Barreto, paras. 432–434)

It is acknowledged that damages arising from claims of IPV have been historically low, but “the courts’ recognition of the insidious harms by IPV is evolving much like it did with respect to civil sexual assault claims, which were originally very modest but have evolved considerably” (Barreto, paras. 436–437). Accordingly, Justice Vella stated that reference to civil sexual assault damages awards is helpful as a guide because in both types of cases, “the dominant harms experienced generally tend to be psychological and accompanied by a betrayal of trust” (Barreto, para. 440).

Justice Vella cited the range of non-pecuniary/general damages for adult-on-adult sexual assault set out in Zando v. Ali, 2018 ONCA 680 of $144,000 to $290,000 in 2017 dollars, “which provides a useful general framework for how to assess psychological impacts committed within a betrayal of trust.” (Barreto, paras. 440–441) With inflation adjusted for 2024 dollars, the range is $177,357.80 to $357,178.90.

Applying this range to the case at bar, Justice Vella concluded the appropriate general damages award in the case before her was $150,000, $50,000 of which she attributed to aggravated damages in recognizing the “pattern of psychological manipulation perpetrated over a lengthy time by a spouse resulting in a profound betrayal of trust” (Barreto, para. 448).

Also of note is the finding that, although the wife admitted to abuse by her mother in childhood, the wife “showed her resilience to any adverse impacts that mistreatment may have had by excelling in university and her job as a psychologist prior to her marriage” (Barreto, para. 429). In terms of damages causation, Justice Vella found that the harms established by the wife were solely the result of the husband’s abusive conduct.

A punitive damages award was made against the husband in the amount of $10,000, having regard to “the compensation awarded, the reprehensible nature of the misconduct perpetrated, the prevalence of IPV […], the lack of remorse, and the means of Mr. Salema” (Barreto, para. 452). Notably, this award for punitive damages incorporates the principle of deterrence by accounting for the “prevalence of IPV” in general.

We note that in Zunnurain v. Chowdhury, 2024 ONSC 5552, another decision involving civil tort claims in the context of family law proceedings that was released shortly after Barreto, Justice Ranjan Agarwal awarded $200,000 in damages to the wife for assault, battery, and intentional infliction of mental suffering, $175,000 of which was for compensatory and aggravated damages and $25,000 for punitive damages. This award is in line with Justice Vella’s comments about the appropriate range of damages in these cases.

This is part one of a two-part series. Part two will discuss other key takeaways of Barreto v. Salema.

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BC Court Determines School Board Not Vicariously Liable For Off-School Sexual Abuse

In Ontario, vicarious liability has been found to attach to a school board for the wrongful conduct of its staff, even where it occurred off of school premises. The leading case C.O. v. Williamson 2020 ONSC 3874, involved a plaintiff (represented by Elizabeth Grace of Lerners LLP) who was sexually abused by her high school music teacher and band leader, Royce Williamson, primarily while driving her to and from band related events in his personal vehicle. In this seminal case, Justice Salmers held that the school board was vicariously liable for Mr. Williamson’s misconduct as it was strongly connected with his employment with the school board, which employment materially and significantly increased the risk of harm to the plaintiff.

The outcome in the recent Supreme Court of British Columbia decision, HN v School District No. 61, 2024 BCSC 128, clarified that institutions may not be vicariously liable for misconduct occurring off its premises, depending on the particular circumstances. In this case, the plaintiff brought an action against his private tutor, Gary Redgate, who sexually abused him when he was 11 years old, as well as against the school district which had recommended Mr. Redgate to the plaintiff’s parents and allowed him to meet with the plaintiff on its school premises. Initially the tutoring sessions were held in an empty classroom, but eventually Mr. Redgate began inviting the plaintiff to his home for tutoring, and unrelated activities such as watching movies, playing cards and working on home projects. The visits to his home were agreed to and arranged by the plaintiff’s parents. There were no allegations of any significant inappropriate behaviour occurring at the school, but the plaintiff described Mr. Redgate’s sexualized advances as intensifying incrementally during his visits to Mr. Redgate’s home, which continued until the plaintiff was 15 or 16.

Mr. Redgate died during the legal proceeding, and the Court ultimately determined that his Estate was liable for the sexual abuse he committed against the plaintiff. However, the Court determined that the school district should not be held liable for the misconduct of Mr. Redgate that occurred off its premises.

In assessing the vicarious liability of the school district, the Court in HN v School District No. 61 applied the “strong connection test” set out in the Supreme Court of Canada’s decisions in Bazley v. Curry, [1999] 3 S.C.R. 6 and Jacobi v. Griffiths, [1992] 2 S.C.R. 570. The Court emphasized there needed to be a strong connection between the actual duties imposed by the school district and the abusive conduct of Mr. Redgate, and it failed to find that a sufficiently strong connection existed between what the school was asking Mr. Redgate to do and Mr. Redgate’s wrongful acts. Further, the Court pointed out that the plaintiff’s parents did not rely on the school district when making arrangements for their son to meet with Mr. Redgate, and never had any concerns about their son’s visits to Mr. Redgate’s home.

The Court specifically referred to C.O. v. Williamson, stating that it is distinguishable because in that case, the teacher Mr. Williamson was found to have power over the plaintiff which was conferred on him by the school board due to the school’s approval of his role and associated activities (including leading band trips and transporting students home from school and school-related activities). In imposing vicarious liability on Mr. Williamson’s school board employer, the trial judge in C.O. v. Williamson did not differentiate between the abuse Mr. Williamson committed on and off of school premises, nor suggest that drives home after a school field trip or after a band rehearsal (when he assaulted the plaintiff) were unrelated to his job as a teacher. In short, relying on the Supreme Court of Canada’s requirement for a strong connection between the misconduct and the tasks assigned to the wrongdoer, the judge found all of the abuse Mr. Williamson perpetrated against the plaintiff was connected with his job as a teacher and band leader.

The B.C. decision in HN v School District No. 61 should be understood on its unique and narrow facts — sexual assault of a student by a private tutor (not an employee of the school district) which occurred only off school premises and in a context that was not connected to any approved school activities. This is distinct from C.O. v. Williamson, where a strong connection was established.

To date, C.O. v. Williamson has not received any negative treatment by an Ontario or other court in Canada and, therefore, continues to be a persuasive authority for vicarious liability cases involving school boards or districts that confer on teachers and other school personnel responsibility for, and power over, our children.

More encouraging for sexual abuse survivors in HN v School District No. 61 was the award to the plaintiff of $225,000 for non-pecuniary general damages. In making this award, the B.C. court acknowledged the trend towards increasing damages in sexual abuse cases and declined to rely on dated damages assessments (decided more than 10 years ago). This is because these old awards do not reflect the evolution of society’s and, in turn, our courts’ understanding of the extent of the harms caused by the sexual abuse of children. Over the last decade, our courts have increasingly recognized that the damages awarded to survivors of childhood sexual abuse should be commensurate with the gravity and harmfulness of the conduct, the effects of which often manifest in survivors’ lives over time. This understanding, we hope, will continue to evolve and be reflected in the reasoning of our courts in abuse cases.

If you are a survivor of sexual abuse, reach out for a free consultation. You are not alone.

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Criminal Convictions Continue To Prove Advantageous For Subsequent Civil Lawsuits: Latest On Summary Judgment In Sexual Assault Cases

A criminal conviction, while not necessary for success in a civil lawsuit for damages, can nonetheless be advantageous.

Here, I again update an earlier blog, Criminal Convictions Advantageous for Subsequent Civil Lawsuit, to describe yet another example of the successful use of a criminal conviction to secure partial summary judgment: Helston v. Cadorette, 2024 ONSC 1636, 2024 CarswellOnt 4358. However, this latest Ontario decision reinforces the need to take care when seeking full summary judgment, since the court declined to grant summary judgment on damages, finding this was an issue for trial.

With the backlog in our courts and the delays getting cases to trial, it is worth considering more than ever whether summary judgment is an option that makes legal and practical sense. At the end of this article, I offer “takeaways” to assist in making that decision.

Introduction

In sexual abuse and violence cases that are pursued in our civil courts, it is common for there to have been a prior criminal proceeding involving the same parties and factual issues. Many survivors are unaware that the civil justice system provides an alternative, or an additional, means of recourse and accountability. As a result, they often go directly to the police, thinking the criminal justice system is the only option available to them, and never resort to the civil justice system. Other survivors make a deliberate choice to report first to the police and go through a criminal proceeding before pursuing compensation through a civil action. This article addresses the second situation.

In a previous blog post, a posted article, and a video, I explained key differences between criminal and civil proceedings based on sexual assault allegations and how the two systems of justice — criminal and civil — interact. Here, my focus is on how a criminal conviction can be used in a summary judgment motion to narrow or resolve the issues that need to be proven in a subsequent civil lawsuit. Three recent Ontario Superior of Justice decisions, as well as an older Ontario Court of Appeal decision, provide helpful guidance on this topic.

Case Law Review

After Franco v. White 2001 CanLII 24020, where the Ontario Court of Appeal in 2001 upheld a summary judgment ruling based on a conviction, there seemed to be few motions brought in civil abuse cases for summary judgment on the basis of prior convictions. However, recently I have noted what appears to be renewed interest in pursuing this option.

In Lambert et al. v. Lambert, 2022 ONSC 6432, the defendant pleaded guilty to three counts of indecent assault against three family members. Afterward, two of these family members (daughters of the defendant) sued their father for compensation. Despite his guilty plea in the criminal proceeding, the father denied any wrongdoing in his civil Statement of Defence.

The plaintiff daughters went to court to ask for partial summary judgment. They wanted their father’s legal responsibility for abusing them determined summarily on the basis of his prior conviction, so only the issues of damages and what caused their damages would be left to be determined at trial. The Ontario Court of Appeal in Butera v. Chown Cairns LLP, 2017 ONCA 783 has said partial (as opposed to full) summary judgment will only be granted in rare cases. In Lambert v. Lambert, the judge granted the plaintiffs’ motion, while acknowledging that partial summary judgment is reserved only for the “clearest” of cases. The judge found the case before him was one of those clear cases.

In explaining his decision to grant partial summary judgment, the judge said, “Plaintiffs who are victims of sexual assault should know at the earliest opportunity that the issue of liability is a non-issue… It is equally important that the defendant understand now, and not later, that liability is no longer an issue.” The judge said it would be “a rare case where partial summary judgment would not be granted” in circumstances like the ones before him.

Once partial summary judgment has dispensed with the need to prove liability, plaintiffs still have to prove damages. Likewise, if there are other defendants besides the criminally convicted defendant, the liability of those other defendants will remain to be determined. However, even with these issues going to trial for resolution, one is likely looking at a more streamlined trial process that does not require plaintiffs to revisit the painful details of the sexual abuse they endured.

In W.C. v. R.S., 2023 ONSC 4287 the plaintiff also relied on a prior criminal conviction by guilty plea to secure summary judgment on liability. The defendant was the plaintiff’s father’s cousin and sixteen years older than the plaintiff. When the plaintiff was only 14, the defendant coerced her into engaging in a sexually exploitative relationship with him. He pleaded guilty to a charge of “seduction” of a female between the ages of 16 and 18 years of age, an offence that was on the books at the time of the abuse. Before the criminal court, the Crown read into the record the relevant facts about the defendant’s sexual misconduct. These included that his abuse had started when the plaintiff was 14 and had continued for many years afterward. The defendant personally agreed on the record that this was “what happened.”

While the plaintiff argued the prior conviction and admitted facts were sufficient to dispose of the issue of civil liability, the defendant countered that the sexual activity was consensual, a defence he said was only available to him in the civil action because lack of consent was not an element of the offence of seduction. On this basis, the defendant argued his liability was an issue for trial.

Both parties filed affidavits on the plaintiff’s motion for summary judgment, and there was cross-examination on the affidavits. Citing Lambert v. Lambert, referred to above, the motions judge found the defendant was “bound by the admissions he made to the essential essential facts of the offence,” and while the offence to which the defendant pleaded guilty only covered the sexual abuse that occurred when the plaintiff was over age 16, the admitted facts went beyond that. The judge was satisfied that the elements of the tort of battery were made out, and there was no consent capable of giving rise to a defence to the tort. Nothing said in the affidavits nor on cross-examination raised a genuine issue for trial relevant to consent.

Of note, the judge in W.C. v. R.S. then went on to assess the plaintiff’s damages, finding that the record (which included evidence by a psychologist who had assessed the plaintiff) was sufficient to make the necessary determinations, and a trial on damages would not be the fairest, most proportionate, and most expeditious way to do justice between the parties. Thus, full summary judgment disposing of the entire action was granted. Non-pecuniary damages of $275,000 ($225,000 for general damages and $50,000 for aggravated damages) were awarded, as were damages for future therapy. The judge declined to award damages for loss of competitive advantage or punitive damages.

The latest decision on point is Helston v. Cadorette, 2024 ONSC 1636, 2024 CarswellOnt 4358. Here, the plaintiff moved for full summary judgment on liability and damages, but was only partially successful. The court concluded that summary judgment on liability was appropriate for the assaults which were the subject of the defendant’s convictions. However, it found there were genuine issues regarding the impact of the abuse relative to other adverse experiences in the plaintiff’s life, and therefore, determination of the plaintiff’s damages required a trial for resolution.

This decision serves as a reminder that summary judgment does not flow automatically from the fact of a conviction, and that to succeed, there must be a fulsome evidentiary record that is sufficiently clear and non-contentious for the motions judge to feel confident they can fairly resolve the dispute without a trial. It also highlights how, when moving for summary judgment, one must be strategic and think through whether giving up certain claims is worth the benefits of a more expeditious and less costly dispute resolution process.

In Helston v. Cadorette, the plaintiff sued his former hockey coach after having him charged criminally for sexual offences committed when the plaintiff was between 12 and 14 years old. The defendant pled guilty and was consequentially convicted of the sexual offences of indecent assault and gross indecency. In his civil suit, the plaintiff relied for liability on the torts of assault, sexual battery and the intentional infliction of mental suffering, as well as on breach of fiduciary duty. Of note, the plaintiff’s lawyer advised the court that her client was only seeking summary judgment on the acts underlying the conviction, thereby abandoning any claim for acts of abuse that were not the subject of the conviction.

The evidentiary rule in s. 22.1 of the Ontario Evidence Act was relied upon to use the defendant’s prior conviction as proof of the verdict and the essential facts of the offence. The defendant, in resisting summary judgment on liability, sought to dispute the facts admitted by him at his criminal trial by way of an agreed statement of facts negotiated between his criminal defence lawyer and the Crown, and presented to the criminal court. The motions judge relied on the doctrine of abuse of process to prevent him from relitigating the essential facts of the offences, saying that to allow him to recant from the admissions he previously made at his criminal trial would bring the administration of justice into disrepute.

There was voluminous evidence filed by the parties in Helston v. Cadorette, including contradictory evidence by their respective experts on the impact the defendant’s sexual abuse had on the plaintiff. The plaintiff urged the motions judge to use her powers to weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence so as to avoid a trial. The judge, however, held she could not decide between the conflicting expert opinions based solely on the paper record, and the interests of justice required live testimony to determine credibilty issues and which of the competing expert opinions to accept. Nonetheless, the judge found that partial summary judgment was appropriate because the liability issues could be bifurcated from the damages issues and dealt with expeditiously and in a cost-effective manner.

One last point: It is the conviction, and not whether it arose from a guility plea or guilty verdict, that is important. Lambert v. Lambert, W.C. v. R.S. and Helston v. Cadorette all involved a conviction arising from a guilty plea, which is an admission of wrongdoing by the accused person. Franco v. White 2001 CanLII 24020 was a sexual assault case in which the accused at his criminal trial entered a plea of “not guilty,” and then faced a trial on the merits that resulted in a guilty verdict. The Ontario Court of Appeal upheld the lower court’s decision to grant summary judgment on liability based on this conviction.

Takeaways

I offer some takeaways from the case law and my years of experience litigating sexual abuse claims to help the reader decide whether to bring (or resist) a motion for summary judgment based on a prior conviction (that is not under appeal nor been successfully appealed) involving overlapping parties and issues:

1. Section 22.1 of the Ontario Evidence Act provides that proof of a person’s conviction is proof in another subsequent proceeding that the criminal offence was, in fact, committed by that person unless there is evidence to the contrary. In short, the Evidence Act creates a statutory presumption of wrongdoing in the face of a conviction. This has also been described as giving rise to prima facie proof (to be distinguished from conclusive proof) of the fact of guilt in a later civil proceeding. Other jurisdictions in Canada have similar provisions in their respective Evidence Acts.

2. Proof of a person’s prior conviction is proof not only of the guilty finding, but also of the “essential facts” underlying the criminal offence for which the person was found guilty — i.e., that the person committed certain unlawful acts with the state of mind (or intent) necessary to result in criminal guilt for the particular offence.

3. As a result, convicted defendants cannot re-litigate the essential facts underlying the criminal offence. This means they cannot lead evidence to contradict the key facts behind their convictions.

4. However, the statutory presumption of wrongdoing created by the Ontario Evidence Act (and other Evidence Acts across Canada) can, in certain circumstances, be rebutted (or countered). As the Ontario Court of Appeal in Franco v. White said, “Summary judgment does not follow automatically upon a criminal conviction if the defendant can show that despite the conviction, there is an issue to be tried.” The courts have accepted that defendants may rebut the presumption of wrongdoing to which a conviction gives rise. To do so, they will need to adduce compelling evidence that, in the context of a summary judgment motion, gives rise to a triable issue or, if at trial, is sufficient to discharge the defendant’s rebuttal onus of proof. Examples of where the effect of a conviction may be successfully rebutted are where the conviction was vague, and there was not sufficient similarity between the facts giving rise to the civil claim and those underlying the conviction, or where a defendant lacked adequate incentive to fully defend a minor criminal charge, and it would be unfair to hold the defendant to that result when facing more serious consequences from a civil action. The case law suggests it will be rare for a court to look behind a criminal conviction and find it cannot be relied upon in a subsequent civil proceeding. Certainly, a previously convicted defendant cannot simply repeat their plea of not guilty and assert a blanket denial of the allegations, and expect this to be sufficient to rebut the presumption of guilt. More than this is required.

5. The documents from the criminal proceeding that civil lawyers on both sides need to collect and rely upon to prove (or rebut) the presumption of wrongdoing in the civil proceeding include:

(a) A certificate of conviction (see s. 22.1(3) of Ontario’s Evidence Act, which addresses how to prove a conviction);

(b) In the case of a guilty plea, the transcript of the criminal proceeding that includes the agreed statement of facts, the judge’s reasons for guilty verdict, and the judge’s reasons for sentence; and

(c) In the case of a contested trial on the merits, the transcript of the criminal proceeding that includes the judge’s jury charge and the jury’s verdict (where it was trial by jury), and in a trial by judge alone, the judge’s reasons for conviction, and the judge’s reasons for sentence. (See s. 5 of Ontario’s Evidence Act which addresses admissibility of transcripts and s. 36(1) for when judicial notice can be taken of a judicial document like a judge’s reasons, order, and judgment.)

6. For plaintiffs and their lawyers, there is good legal authority for shortening the civil litigation process by, in effect, taking a big (and often difficult) piece of what has to be proven — namely, the factual allegations of the assault(s) that underpin civil liability — out of the equation. This potentially means a more streamlined litigation process, including a narrower scope for documentary and oral discovery of the plaintiff and a shorter and less distressing process for the plaintiff, who will not be called upon to repeat and re-live the details of what happened through oral examination for discovery, a defence medical examination, and/or at trial through their testimony.

7. However, there are many practical considerations that plaintiffs and their lawyers will need to bear in mind when deciding whether to move for summary judgment on liability. These include:

(a) Whether this means they must confine the causes of action pleaded in their Statement of Claim to those that most closely resemble the elements of the criminal offence for which the defendant was convicted, or abandon certain causes of action that introduce new elements that will have to be separately proven to establish liability. In Franco v. White, the plaintiff on the summary judgment motion made a strategic decision to abandon her claims for breach of trust, negligence, and intentional infliction of mental suffering asserted in her Statement of Claim and to limit her claim to one for civil sexual assault. The plaintiff in W.C. v. R.S. similarly abandoned some of the causes of action in her Statement of Claim. In some cases, restricting the claim made to what aligns most closely with the criminal offence on which the conviction was based will not capture the full extent of the wrongdoing and its impacts.

(b) Whether removing liability from the equation might unduly narrow the defendant’s documentary and oral discovery obligations.

(c) Whether the conviction is based on facts that do not cover the full range of factual allegations in terms of types and nature of occurrences and potentially aggravating factors, like threats, violence, breach of trust, and being made to submit to particularly degrading or humiliating acts. If so, there may be good reason not to pursue partial summary judgment, so the full scope of the wrongdoing is before the court when it assesses damages;

(d) Remember that a plea of “guilty” is often based on an agreed statement of facts, which reflects a compromise between the Crown and the accused person. Such a statement will need to be reviewed carefully to determine what was omitted, and how any omissions may detract from the plaintiff’s civil claims for liability and damages;

(e) Whether, in order to prove compensatory damages in the civil proceeding, evidence with respect to the facts of what happened are necessary and helpful to the plaintiff’s case;

(f) Whether, in order to overcome the impediments to punitive damages where there has been a prior conviction (see V.T. v. D.T., 2021 ONSC 5926 for the guiding principles in this regard), it is necessary to adduce evidence as to what exactly occurred and how, for example, this extended beyond the facts supporting the criminal conviction; and

(g) Whether defence counsel will voluntarily agree to limit discovery of the plaintiff to the issues of damages and their causes. If the Statement of Defence contains a complete denial of wrongdoing despite the prior conviction, determine whether it is worth trying to reach an agreement with the defence lawyer(s) that they will not question the plaintiff on what happened, and will agree to limit their examination to what impacts the assaults (and other events) had on the plaintiff.

8. For convicted defendants and their lawyers, the following should be considered from the outset:

(a) Whether a blanket (or complete) denial of liability in a Statement of Defence, response to a motion for summary judgment on liability, and/or Request to Admit is advisable, bearing in mind that doing so could give rise to additional damages being awarded against the defendant for their refusal to accept the guilty verdict and their lack remorse and/or an unfavourable cost award for prolonging the litigation;

(b) If the allegations in the civil lawsuit extend beyond the essential facts on which the criminal conviction was based, then consider asserting a partial denial of liability in which only the allegations of fact that extend beyond those that were foundational to the conviction are disputed;

(c) If evidence to rebut the statutory presumption of wrongdoing that arises from a conviction is available, be sure to plead the relevant facts in the Statement of Defence and to adduce this evidence in response to a motion for partial summary judgment on liability and/or to lead it at trial; and

(d) If the presumption of wrongdoing from the conviction is unassailable, then look for ways to shorten the litigation and its associated expense by conducting an examination for discovery of the plaintiff that is focused on damages (and telling the plaintiff’s lawyer in advance that this is the intent), and looking for early opportunities to settle the action.

Conclusion

Unlike a prior acquittal which is not relevant nor admissible in a civil case (see, for example, Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427), a prior conviction has many implications for a later civil lawsuit involving the same parties and essential facts. The potential for summary judgment on liability is just one of these implications. Our courts have made it clear that a criminal conviction can be advantageous for plaintiffs in a later civil action, as it may dispense with the need to prove liability against convicted defendants. The decision to proceed with a motion for partial or full summary judgment, and what position to take in response to such a motion, are matters deserving of careful and strategic consideration by the parties to a civil lawsuit and their lawyers.

While a prior conviction is by no means a prerequisite to pursuing a civil remedy for sexual abuse and violence, where a conviction does exist, whether based on a guilty plea or a verdict, it will usually allow plaintiff survivors to move through the civil process towards resolution and some closure, more efficiently and confidently. For defendants — both those who have been previously convicted and others who may share legal responsibility for the wrongdoing — a prior criminal conviction can offer opportunities for a more streamlined and cost-effective resolution of a civil matter.

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The Defence Of Consent In Civil (Not Criminal) Sexual Assault Cases

The defence of consent comes up regularly in civil litigation where sexual assault has been alleged and the defendant admits there was sexual contact, but says it was not unlawful because the contact was consensual. Most often, consent is raised when the sexual contact occurred between adults.

While it would be highly unusual, if not outright improper, to see consent raised where the person claiming to have been assaulted was a minor at the relevant time, I do sometimes see consent raised in instances where sexualized contact started when a person was a child and continued or resumed after they became an adult. I also see consent raised when the person claiming to have suffered sexual assault was in their late teens at the time of the contact.

It is essential that lawyers on both plaintiff and defence sides, and their clients, know how consent is approached by our civil courts, especially because civil sexual assault cases tend to attract less media attention and scrutiny than their criminal counterparts. Importantly, the defence of consent operates differently depending on whether the sexual assault is being litigated in a criminal or civil context. While there are common principles, there are also critical differences.

Consent in the Criminal vs Civil Context

My understanding as a civil litigator is that, in criminal law, lack of consent is an element of the offence of sexual assault. What I mean by this is that the Crown, which has the onus of proof in a criminal case, must establish beyond a reasonable doubt that there was:

1. Sexual touching,

2. No consent, and

3. An intention to touch knowing there was no consent, or being reckless or willfully blind as to lack of consent.

This is different from civil law, where the person alleging sexual assault (the plaintiff) has the onus of proof, and must establish on a balance of probabilities that there was intentional sexual touching. The plaintiff need not prove the absence of their consent to this touching; rather, the plaintiff need only assert that the touching was non-consensual. The onus of proof then shifts to the defendant to establish, again on a balance of probabilities, that there was actual consent, or that a reasonable person in their position would have believed there was consent. In other words, it falls to the defendant to prove consent, not to the plaintiff to disprove consent.

This means the defence of consent in a civil case is an affirmative one — if not raised by a defendant, then it is not to be considered.

As a general rule, sexual assault is easier to establish in a civil rather than a criminal case. This is because of the differences in how the defence of consent comes into play and in the burdens of proof. Given that a person’s liberty is at stake when they are charged criminally, whereas “only” their pocketbook and reputation are on the line when they are sued civilly, it makes sense that proving sexual assault in criminal law is more challenging than doing so in the civil context.

In Canada, the leading decision that explains these differences in approach is the civil decision by the Supreme Court of Canada in Non-Marine Underwriters, Lloyd’s London v. Scalera, 2000 SCC 24. For a more recent application of the principles in a civil context, I suggest the Nova Scotia decision in A.M.S. v. Wootton, 2016 NSSC 351.

Commonalities Between Criminal and Civil Approaches to Consent

There is also consistency in how consent is approached in our criminal and civil justice systems. Both systems are premised on assumptions about individual autonomy and free will, and where it comes to the defence of consent, both are alive to the circumstances that can make these assumptions unreliable.

In criminal law, the principles that define the common law (or judge-made law) of consent have been codified in legislation — namely, the Criminal Code of Canada. In civil law, these principles are the prerogative of the courts to define and modify as they deem appropriate and necessary.

In both systems, for the defence of consent to be given legal effect, the consent must have been freely given and fully informed. This means that what may look on its face to be consensual sexual activity will not necessarily be treated in law as legitimately or legally consensual.

Historically, consent will be invalidated where any of the following is proven:

1. There was legal incapacity to consent, such as in the case of a minor or a person under disability,

2. The person said to have consented was under duress at the time,

3. Force or threat of force was used to compel or extract so-called consent, and

4. Deceit or fraud was used to compel or extract so-called consent.

It used to be that consent given under the influence of drugs or alcohol was also viewed in law to be invalid. However, the modern approach to consent under these circumstances is a more nuanced one.

Consider the instance of a person who is unconscious when they are touched sexually. That person clearly cannot give free and informed consent to being so touched (nor can they pre-consent while they are conscious).

What about the person who is drunk or under the influence of drugs when they are touched sexually? While the extremes give rise to clear answers, the continuum between the extremes is less clear and highly dependent on the facts. At one extreme, a person so under the influence that they are incapable of understanding or perceiving the situation in which they find themselves will not be capable of giving legally effective consent. At the other extreme, a person who has consumed alcohol or other substances and is drunk or high can consent.

This was explained in the 2017 Toronto police officer case of R. v. Myznik, 2017 ONSC 4392, where the court quoted from an earlier decision that stated:

“Cases where the complainant is said to be incapable [due to] consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision-making, memory loss, loss of inhibition or self control. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at time[s].”

Unique Approach to Invalidating Consent in Civil Cases: Power and Exploitation

The Supreme Court of Canada has developed the common law to provide for a separate, and what has become a widely relied upon, ground for finding that apparent or ostensible consent is not genuine or legally valid consent. This ground is based on public policy considerations and a concern not to legitimize consent that was obtained through the improper exercise of power and exploitation — i.e., was coerced.

To understand this ground for invalidating consent, it is best to do so in the context of the civil case in which the Supreme Court of Canada developed it, Norberg v. Wynrib, [1992] 2 SCR 226. This case involved two adults, an elderly male physician and his young adult female patient. The physician prescribed addictive pain killers to his drug-dependent patient in exchange for sexual favours from her. Both the trial judge and the British Columbia Court of Appeal dismissed the patient’s claim based on sexual assault and battery on the basis of her implied consent (i.e., no force or threats of force were used by the physician, and her drug addiction had not interfered with her capacity to consent to sexual activity).

The Supreme Court of Canada’s disagreement with the lower courts’ reasoning was based on the imbalance of power that clearly characterized this relationship and put into question the patient’s ability to choose freely. The Supreme Court developed a two-step test which, if satisfied, means what may look on the surface to be consent in fact will in law be “vitiated” (or legally invalidated). This test requires:

1. Proof of “an overwhelming imbalance of power in the relationship between the parties,” which the Court said would ordinarily occur in the context of a “special power dependency relationship,” such as that of parent/child, psychotherapist/patient, doctor/patient, clergy/parishioner, teacher/student, lawyer/client, and employer/employee; and

2. Proof of exploitation, namely that the defendant abused their power over the plaintiff to advance their own self interest to the detriment of the plaintiff.

Circumstances relied upon by the Supreme Court in Norberg v. Wynrib to determine there was an overwhelming power imbalance undermining the patient’s free will to consent included the following: the patient’s age, gender, limited education and addiction to drugs, contrasted with the doctor’s age, gender, professional status and his specific knowledge of the plaintiff’s addiction (i.e., her vulnerability). The Supreme Court concluded that exploitation had occurred because the doctor had abused his power over his patient and exploited information about her weaknesses acquired while he was supposed to be discharging his professional obligations, and he did so in order to advance his own selfish interests related to his sexual gratification.

The Supreme Court of Canada’s test for determining in civil cases whether what appears to be consent is true consent and how it applied the test on the facts before it demonstrates that the legal validity of consent to sexualized contact will depend on a careful consideration of the nature of the relationship and the comparative circumstances of the parties to that relationship. While the legal test is clear, the conclusion as to whether there was or was not consent will be dependent on the facts.

Since defendants in civil cases bear the onus of proving consent, their lawyers need to be acutely aware of the power dynamics operating between the parties at the relevant times, and particularly at the outset if there was ongoing sexualized contact. They also need to consider whether their client can be said to have exploited some advantage they held over the plaintiff in order to secure “consent.” Where there was inequality that was coupled with exploitation, then the apparent consent will be treated as coerced consent and be of no legal force or effect.

Even if this hurdle to the defence of consent can be overcome for the torts of sexual assault and battery, the defence lawyer must also be mindful whether the defence could falter in relation to another cause of action that may be asserted, such as breach of fiduciary duty. Indeed, there is a line of case law where courts have found that consent operated to defeat liability for the torts of assault and battery, but not for breach of fiduciary duty. This is because of the preeminent importance we as a society attach to fiduciary relationships. Thus, it is conceivable that while a sexualized relationship between adults may be treated as consensual for some purposes, it will not be treated as lawful for other purposes. Examples include where there was sexualized contact between a clergy member and a parishioner, or between a health care or other professional and their client.

The nuances in the defence of consent in the civil context, and its similarities and differences to consent in the criminal context, must be considered by plaintiff and defence lawyers alike. While the case law has clarified the legal framework for consent in civil claims, a fact-specific analysis remains critical to the assessment of liability for the torts of sexual assault and sexual battery.

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Young Age Impacts Credibility And Reliability Assessments In Historical Sexual Abuse Claims

When assessing a witness’ credibility and reliability in a historical claim, consideration must be given to a witness’ age at the time of the events and to the passage of time since then.

There is no statutory limitation period in Ontario applicable to civil claims arising from or relating to sexual abuse. A victim may claim against a perpetrator or institution for historical sexual abuse.

In these historical claims, adult witnesses are often asked to recall and give evidence about sexual abuse they experienced as children. This raises the question: should the reliability and credibility of these witnesses be assessed as the adults they are now, or as the children they were when the abuse occurred?

The recent British Columbia decision in CLH v. KAG, 2022 BCSC 994 has confirmed a witness’ credibility should be assessed as an adult in such circumstances. That said, a lack of memory or inconsistencies, particularly as to peripheral matters such as time and place, must be considered in the context of the witness’ young age at the time of the events.

This B.C. case relies on the Supreme Court of Canada’s much-cited decision in R v. RW, 1992 CanLII 56. The court in RW acknowledged children experience the world differently from adults and details important to adults, such as time and place, may be missing from children’s recollections. These missing details alone are not a reason to discount the evidence given as children, or as adults looking back on historical events that happened in their youth.

While RW is a criminal case involving child sexual abuse, its adoption by the B.C. case demonstrates this credibility/reliability assessment principle is equally applicable to civil cases.

The defendant in the B.C. case was an adult at the time of trial but was found to have sexually assaulted his sister when he was aged 10 to 16. His sister was aged 6 to 12 at the time.

Though the B.C. judge had concerns about the credibility and reliability of both parties, those concerns were not based on minor inconsistencies. Rather, the parties were found to have exaggerated or changed their evidence at times to suit their interests in the case. Nonetheless, the judge ultimately believed the plaintiff and found the defendant had sexually assaulted her on multiple occasions over a period of years.

The principle in RW was recently also considered by the Court of Appeal for Ontario in a historical physical abuse case, Paddy-Cannon v. Canada, 2022 ONCA 110. The court granted the appeal and ordered a new trial. The court found the trial judge, in assessing the credibility and reliability of the witnesses’ evidence, was not mindful of the context, including the age of the witnesses at the time of the events and the passage of time since then.

Courts have acknowledged the impact of a witness’ age and fading memory on their ability to recall and give evidence about historical events. Increasingly, they are also coming to understand how trauma affects memory and recall.

When evaluating the strengths and weaknesses of witnesses’ evidence in historical cases, it is important for both plaintiff and defence lawyers to keep these considerations in mind and, where appropriate, bring civil court decisions that have followed the Supreme Court of Canada’s guidance in RW to courts’ attention so they have some guidance on how to assess the credibility and reliability of adult witnesses speaking to historical and traumatic events from childhood.

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SCC Decision Every Sexual Abuse Lawyer Should Know About

Whether it is for negotiation, mediation, motion, pre-trial, trial or appeal purposes, there is one decision every plaintiff lawyer should have on hand: R. v. Friesen, 2020 SCC 9. Although it is a criminal case, this ground-breaking decision by the Supreme Court of Canada has had reverberations — and rightly so — in other areas of the law, including civil sexual abuse claims, family law disputes, child protection cases, and human rights complaints.

Shortly after R. v Friesen was released in 2020, I wrote a blog post in which I stated my belief that this decision’s importance extends far beyond the criminal sentencing context in which it arose — see Canada’s Highest Court Delivers Wake Up Call On Child Sexual Abuse. I wrote there, and have since made this argument in my files, that if one substitutes the word “damages” where the court talks about “sentences” or “sentencing,” the meaning remains as true and relevant to the civil sphere as the criminal one.

Four years later, I feel vindicated in my belief. I now see R. v. Friesen regularly cited in the reported civil abuse case law. It needs to stay this way. Mindsets still need to be changed, and there is no better ally for achieving this than our country’s highest court.

Before describing how civil courts are using R. v. Friesen, let me first summarize some highlights from this remarkable decision.

R. v. Friesen: Highlights

R. v. Friesen involved a young victim of sexual offences. The Supreme Court of Canada addressed the pervasiveness of child sexual abuse and the profound and widespread harms it causes, and it implored those involved in the justice system to treat this problem with more care and sensitivity.

The court opened its landmark 9-0 decision with these strong words: “Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence.”

Through its decision, the court stated:

“[W]e send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm it causes to children, families, and society at large.”

Here are some “takeaways” from R. v. Friesen that I, as a civil litigator practicing in this area for almost three decades, find instructive.

1. Prevalence of child sexual abuse:

The Supreme Court observed that police and the courts are seeing a mushrooming of cases involving sexual violence against children.

New technologies like the internet are enabling new forms of sexual violence against children, and providing perpetrators with new ways to access and control youth. These technologies are also making qualitative changes to these sexual offences; for example, the online distribution of images repeats the original violation by making its victim live with the knowledge that others may be accessing these images in the future.

2. Evolution of understanding:

Just as legislators have been recognizing, adapting, and trying to keep pace with developments in child sexual abuse, the Supreme Court observed that “[c]ourts too have been on a ‘learning curve’ to understand both the extent and the effects of sexual violence against children.” The law has had to and will continue to evolve to respond to its prevalence, and to the different manifestations of the wrong and harms it causes.

3. Characterization of the wrong as violence:

The wrongful nature of child sexual abuse stems from the fact it represents a simultaneous invasion of a child’s personal autonomy, a violation of the child’s bodily and sexual integrity, and an attack on the child’s dignity and equality.

“Violence is always inherent in the act of applying force of a sexual nature to a child,” the Supreme Court said. Whether or not there is additional physical violence and/or physical injuries that accompany such abuse, any physical contact of a sexual nature with a child is “a wrongful act of physical and psychological violence.”

4. Resulting individual and broader harms:

The attack on personal autonomy, bodily integrity, sexual integrity, dignity and equality that sexual abuse against a child represents means courts must consider the resulting psychological harm which will often be more pervasive and permanent than physical harm.

Sexual violence against children “inherently has the potential to cause several recognized forms of harm.” The Supreme Court noted that these are harms that manifest themselves:

1) During childhood, such as self-destructive behaviours, acting out, guilty feelings and shame, lack of trust, low self-esteem, inability to concentrate in school, running away from home, sleep disturbances and nightmares, anxiety, and depression; and

2) During the victim’s adult years, such as difficulty forming loving and caring relationships with others, being prone to engage in sexual violence against children themselves, and struggling with substance abuse, mental illness, PTSD (post-traumatic stress disorder), eating disorders, suicidal ideation, self-harming behaviours, anxiety, depression, sleep disturbances, anger, and poor self-esteem.

Beyond the life-altering consequences that flow to targeted individuals, sexual violence against children has ripple effects, including harm to people who are close to these children and harm to relationships. There is also harm to the broader communities in which the targeted children live, as well as to society as a whole. Noted the Supreme Court:

“Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering … [C]hildren who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood … Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community.”

5. Considerations for sentencing and damages awards:

The Supreme Court directed that courts must impose sentences — and I would add, damages awards — that are commensurate with the gravity of sexual offences against children.

It is not sufficient for courts to simply state that sexual offences against children are serious….courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences.

6. Myths and stereotypes:

R. v. Friesen debunks various myths and stereotypes and warns about not falling prey to common or outdated misconceptions.

Lower courts must reject the common belief that there was no serious harm caused if there was no additional physical violence that caused physical injury. Further, the tendency to downplay the wrongfulness of child sexual abuse or its harm to the victim where the acts did not involve penetration, fellatio or cunnilingus, but instead involved touching or masturbation, has to stop. The notion that the latter kinds of sexual touching are “relatively benign” and thus inherently less harmful is, the Supreme Court said, “a myth that must be rejected.” Why? Because it does not provide any meaningful insight into how the actions were experienced by the targeted child.

“[C]ourts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale… This is an error — there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. As the Court of Appeal for Ontario recognized in R. v. Stuckless, 2019 ONCA 504, physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration… Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. For instance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than an act of fellatio, cunnilingus, or penetration.”

7. The importance of language:

The Supreme Court reminds us that words matter, including those used by lawyers and courts when they deal with child sexual abuse. The use of terms like “fondling” or “caressing” must stop. This is because they implicitly characterize the perpetrator’s conduct as erotic or affectionate, instead of inherently violent. Language like this is misleading and risks normalizing the very conduct that is being scrutinized and condemned.

8. No consent:

A child victim’s “participation” in sexual activity is not de facto consent and should never be treated as a mitigating factor. The court’s clear directive that such participation is not a legally relevant consideration at sentencing should apply equally to damages in civil sexual abuse cases. The Supreme Court appropriately acknowledged that “Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality.” It warned that a victim’s participation should not distract from the harm suffered, and moreover that the absence of additional overt violence, such as weapons, intimidation, and physical injury, does not mean the inherent violence of the sexual abuse of the child should be ignored or downplayed.

Examples of Civil Courts Citing R. v. Friesen

As civil courts across Canada are increasingly required to address child sexual abuse, they are now routinely relying on R. v. Friesen as an authority. Consider the following examples:

1. C.O. v. Williamson, 2020 ONSC 3874 – trial decision; teacher/student sexual abuse; R. v. Friesen cited at paragraph 169 in support of awards for general and aggravated damages in childhood sexual abuse cases increasing over time “as society and the courts have become increasingly aware of the very serious, long-lasting damage caused by such abuse.”

2. C.L.H. v. K.A.G., 2022 BCSC 994 – trial decision; brother sexually abused sister when both were minors; R. v. Friesen cited at paragraphs 299-300 for the inherent potential for harm posed by child sexual abuse.

3. A.B. v. C.D., 2022 BCSC 2145 – application decision; child sexual abuse case involving cross applications for publication bans anonymizing both plaintiff and defendant so they would not be publicly identified; R. v. Friesen cited at paragraph 12 to assist in weighing the interests as stake.

4. C.M.A. v. Blais, 2022 BCSC 214 – default judgment with trial assessment of damages; child sexual abuse by adult family friend; R. v. Friesen cited at paragraph 77 for the inherent potential for harm posed by child sexual abuse.

5. A.B. v. Main, 2023 NSSC 47 – trial decision; child sexual abuse by adult neighbour; R. v. Friesen cited at paragraphs 58-59 for the care that must be taken not to over-emphasize the physical acts that did or did not occur (i.e., whether touching was over or under clothing, or whether it involved penetration). Although the Supreme Court’s comments dealt with criminal sentencing, the trial judge found them “also apt in the civil context.”

6. S.M. v. McNutt, 2024 NSSC 17 – unopposed trial decision; child sexual abuse by hockey coach/teacher; R. v. Friesen cited at paragraph 25 for the proposition that there is not necessarily a correlation between physical severity of sexual abuse and harm to the victim.

7. H.N. v. School District No. 61 (Greater Victoria), 2024 BCSC 128 – trial decision; child sexual abuse by an adult tutor; R. v. Friesen cited at paragraph 2 in reference to evidence establishing that the plaintiff suffered the types of harms in childhood and extending into adulthood often associated with child sexual abuse; also cited at paragraph 216 in the context of considering whether to award punitive damages, with reference to the prioritization of denunciation and deterrence of sexual offences against children.

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Young Age Does Not Excuse Liability of Perpetrators in Civil Lawsuits for Sexual Assault

Criminal law precludes children under the age of twelve from liability. The same is not true for civil claims. While young age is a factor in assessing liability for sexual assault, a perpetrator under twelve can still be held liable in a civil claim.

The Supreme Court of British Columbia decision in CLH v. KAG, 2022 BCSC 994 has confirmed there is no age limit under which children are automatically excused from civil liability for intentional torts, such as sexual assault. In contrast, under criminal law, children under twelve are absolved of liability. This B.C. decision explains that a child’s age may be a factor in determining civil liability as a child’s age may demonstrate they were incapable of forming the intent required to commit an intentional tort.

Civil liability of children tends to attach at a much earlier age than criminal responsibility. However, children have been excused from civil liability in instances where the courts held that the children were too young to have acted with intention. The defendant in the B.C. case was an adult at the time of trial, but was found to have sexually assaulted his sister when he was aged 10 to 16. His sister was aged 6 to 12 at the time. However, the defendant did not assert he was incapable of forming the necessary intent for the tort of sexual assault nor was this finding made by the trial judge.

From a damages perspective, the circumstances of the parties at the time of the abuse in question—which includes their respective ages—is a relevant consideration. The court in the B.C. case held that while the defendant’s young age was a relevant factor, it did not justify an award significantly below the range of damages awarded in other sexual assault cases. Instead, the consequences for the plaintiff of his wrongful behaviour were given primacy.

The court found the detrimental impact of the defendant’s sexual assaults on his sister was substantial, and it awarded non-pecuniary damages of $200,000. Of note, however, the court declined to award punitive damages because the defendant was a child at the time, and it found the denunciation and deterrence aim of punitive damages awards would not be achieved in the circumstance of a child perpetrator of sexual abuse.

While this issue has not been considered in Ontario in recent years, in 1967, the Court of Appeal for Ontario upheld the decision of the trial judge in Tillander v. Gosselin, 1966 CanLII 231 (ONSC) where the court declined to find a 3-year-old liable for physical assault. This was on the basis that a normal 3-year-old could not formulate the genuine intent to do harm or to perform the act that caused the injury.

The takeaway here is that youth at the time sexualized misconduct was committed does not, on its own, insulate that person from civil liability for significant damages. This is an important consideration for plaintiff and defence lawyers alike to keep in mind.

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Family And Intimate Partner Violence – ONCA Renders Landmark Decision In Ahluwalia v. Ahluwalia

Authored by: Erika Tower, Zahra Vaid, and Elizabeth Grace

Last week, the Court of Appeal for Ontario (ONCA) released its highly anticipated decision in Ahluwalia v. Ahluwalia, 2023 ONCA 476. In this blog, we consider the lessons learned from this much discussed and debated case, after summarizing both the trial and appellate decisions.

In short, the decision was an appeal from the judgment of Justice Renu J. Mandhane of the Ontario Superior Court of Justice (ONSC), in a family law proceeding in which she created and applied the novel tort of family violence, and awarded the wife $150,000 for compensatory, aggravated and punitive damages. In our previous blog, we discussed the new tort and Justice Mandhane’s decision at length.

Writing for a unanimous 3-member panel of the ONCA, Justice Mary Lou Benotto determined that the creation of the novel tort of family violence was unnecessary in light of existing torts which adequately address the harms suffered. Although the new tort was not recognized, the decision provided an important opportunity for the ONCA to comment on the complexity of the various forms of violence and abuse that occur in intimate relationships and how they can be addressed by courts in the context of family law proceedings. The decision clearly states that such violence and abuse should be recognized, denounced and deterred, and confirms the jurisdiction of family court judges to render judgments on tortious misconduct in the course of their proceedings.

Background and Lower Court Decision

In this case, the appellant husband and respondent wife were married in 1999 in India. Shortly after their marriage, the couple immigrated to Canada for better opportunities. They arrived in 2002 with their first child and, like many newly immigrated families, had little social and financial support.

The marriage involved significant and serious emotional, financial and physical abuse of the mother at the hands of the appellant father, which led to the couple’s separation in 2016.

The respondent mother subsequently brought an action for statutory relief including divorce, child support, spousal support, and property equalization. She also claimed damages for the husband’s abusive, coercive and controlling conduct during their marriage.[1]

In assessing damages, Justice Mandhane explained that the “no fault” nature of family law must give way where there are serious allegations of family violence that create “independent, and actionable harms that cannot be compensated through an award of spousal support”.[2] She therefore went on to recognize a new tort of family violence. In her view, this was necessary to stay “abreast of social change” and was also consistent with the compensatory goal of tort law.[3]

In characterizing the tort, Justice Mandhane held that a plaintiff could establish, through specific and particularized conduct, a defendant’s liability for the tort in the following ways:

• intentional conduct that was violent or threatening;

• behaviour calculated to be coercive and controlling to the plaintiff; or

• conduct the defendant would have known with substantial certainty would cause the plaintiff to subjectively fear for their own safety or that of another person.[4]

To establish liability, Justice Mandhane stressed there needed to be a “pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessities of life, psychological abuse, financial abuse, or killing or harming an animal of property”.[5]

In her view, the tort was necessary as existing torts, like assault and battery, did not “fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence”.[6]

After finding liability under the tort of family violence, Justice Mandhane assessed damages at $150,000: $50,000 each for compensatory, aggravated and punitive damages. She then considered the statutory claims and determined that the appellant mother was entitled to the entire proceedings of sale from the matrimonial home.[7]

Ontario Court of Appeal

The appellant husband appealed and asked that the ONCA reject the creation of a new tort. While he conceded some liability, his concession was related to liability for existing torts that Justice Mandhane found in the alternative (i.e., torts of assault, battery, and intentional infliction of emotional distress). He argued that the tort of family violence was “poorly constructed, too easy to prove, and would apply to a vast number of cases and create a floodgate of litigation that would fundamentally change family law”.[8]

The appellant wife argued in response that a novel tort was necessary as existing torts “did not address the cumulative pattern of harm caused by family violence”.[9] However, she proposed a narrower tort of “coercive control”, which would be made out where a person, in the context of an intimate relationship inflicted a pattern of coercive and controlling behaviour that cumulatively was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.[10]

The ONCA without question recognized the significance of intimate partner violence, citing the statistic that nearly half of women and one third of men in Canada have experienced intimate partner violence, and it acknowledged the widespread and intergenerational effects of this kind of abuse. However, the issue before it was whether a new tort of family violence was required to address the problem, or existing alternative remedies were sufficient. The short answer was: “existing torts are flexible enough to address the fact that abuse has many forms” and, therefore, the creation of a new tort of family violence is not necessary.

The creation of a new tort of coercive control was also rejected, and the ONCA took particular issue with the submission that the tort as proposed would not require proof of actual harm, but rather must only involve conduct calculated to cause harm.

According to the ONCA, the torts of battery, assault, and intentional infliction of emotional distress are able to recognize the patterns of behaviour that constitute intimate partner violence, for the purposes of both liability and damages. It also noted with approval that a “pattern” of abuse has previously been used to justify higher damages awards through these existing torts. The ONCA provided a lengthy and helpful discussion of how each of these torts sufficiently addresses such patterns of abuse.

Importantly, the ONCA concluded that it was not a mistake that the trial judge included a tort claim in a family law proceeding, and the compensatory damages awarded were appropriate. However, the ONCA allowed the appeal of the punitive damages award of $50,000, as the trial judge failed to make any finding that an award of general and aggravated damages was insufficient to achieve the goals of denunciation and deterrence. The wife’s damages were therefore decreased on appeal to $100,000, from $150,000.

Comment and Discussion

A Message to the Family Law Bar

Although the ONCA rejected the creation of a new tort of family violence, one of the key takeaways from its decision is its explicit confirmation that tort claims can properly be included in family law proceedings, and significant damages can be awarded.[11]

This acknowledgment is crucial, as many survivors of intimate partner violence only consider civil remedies after the conclusion of their family law claim. This can be inefficient and costly, and judgments more difficult to satisfy after assets have been divided and distributed. Having family law and civil law issues dealt with together avoids duplication of effort and resources, and streamlines the process and outcome.

There are other advantages to addressing tort claims within the family courts. For example, there is a more detailed and fulsome disclosure of assets and income in family law proceedings that is not generally available in a civil proceeding. Given the increasingly resolution-based nature of the family law system, litigants are often focused on reaching a final resolution, to achieve certainty and finality, and allow them to move forward with their respective lives.

The acknowledgment and discussion provided by the ONCA of the pervasiveness and seriousness of the various forms of violence and abuse that occur in intimate relationships is also extremely valuable and can be cited and relied upon in future proceedings involving intimate partner abuse. For example, it is recognized that recurring and ongoing abuse, intimidation, domination and financial abuse can become patterned into daily life, and trial judges need to be alive to these dynamics. It is also clearly stated that where any form of abuse leads to psychological injury, compensation is warranted.

A New Benchmark for Damages

In upholding the compensatory and aggravated damages of $100,000 awarded by the trial judge, the ONCA created a new benchmark for damages in cases involving intimate partner violence. It specifically recognized that the trial judge’s damages assessment was based on the depression and anxiety experienced by the respondent wife as a result of the abuse, the “overall pattern of coercion and control and clear breach of trust”, as well as the ways the appellant husband preyed upon the wife’s vulnerability as a new, racialized immigrant to Canada, which made it difficult for her to meet their children’s daily needs.[12] The ONCA justified the high award in light of society’s “emerging understanding of the evils of intimate partner violence and its harms”.[13]

While it remains to be seen whether leave to appeal to the Supreme Court of Canada will be sought, and if so, granted (we think it unlikely), Ahluwalia has generated significant and valuable discussion among the family and civil bars and the judiciary about the intersection of civil and family law proceedings in the context of allegations of intimate partner violence.

A clear message has emerged: intimate partner violence is serious, and it will no longer be rare or exceptional for claims for damages arising out of such allegations to be included in family court proceedings.

[1] Ahluwalia v. Ahluwalia, 2023 ONCA 476 at para. 16

[2] Ibid at para. 17.

[3] Ibid at para. 19-20.

[4] Ibid at para. 23.

[5] Ibid at para. 24.

[6] Ibid at para. 23.

[7] Ibid at paras. 26-28.

[8] Ibid, at para. 29.

[9] Ibid, at para 33.

[10] Ibid, at para 34.

[11] Ibid, at para. 46.

[12] Ibid, at para 127.

[13] Ibid, at para. 128.

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Criminal Conviction Advantageous For Subsequent Civil Lawsuit: Latest On Summary Judgment In Sexual Assault Cases

In sexual abuse and violence cases that are pursued in the civil courts, it is common for there to have been a prior criminal proceeding involving the same parties and factual issues. Many survivors are unaware that the civil justice system provides an alternative, or an additional, means of recourse and accountability. As a result, they often go directly to the police, thinking the criminal justice system is the only option available to them. Other survivors make a deliberate choice to report first to the police and then go through a criminal proceeding before becoming plaintiffs and pursuing a civil remedy.

In a previous blogpost, a posted article, and a video, I explained key differences between criminal and civil proceedings based on sexual assault allegations and how the two systems of justice – criminal and civil – interact. Here, my focus is on how a criminal conviction can narrow the liability issues that need to be proven in a later civil lawsuit dealing with similar matters.

The recent decision, Lambert et al. v. Lambert, 2022 ONSC 6432, by Regional Senior Justice Mark Edwards serves as a timely reminder that a conviction can dispense with the need to prove an individual defendant’s liability (or legal responsibility) in a civil lawsuit.

In Lambert v. Lambert, the defendant pled guilty to three counts of indecent assault against three family members. Afterward, two of these family members (daughters of the defendant) sued their father by bringing a civil claim. Despite his guilty plea in the criminal proceeding, the father, in his civil Statement of Defence, put forward a complete denial of any wrongdoing.

The plaintiff daughters went to court seeking partial summary judgment on their father’s civil liability. They wanted their father’s legal responsibility for abusing them determined summarily on the basis of his prior conviction, so only the issues of damages and what caused their damages would be left to be determined at trial. The Ontario Court of Appeal in Butera v. Chown Cairns LLP, 2017 ONCA 783 has said partial (as opposed to full) summary judgment will only be granted in rare cases. In Lambert v. Lambert, Edwards RSJ granted the plaintiffs’ motion, while acknowledging that partial summary judgment is reserved only for the “clearest” of cases. The judge found the case before him was one of those clear cases.

In explaining his decision to grant partial summary judgment, Edwards RSJ said, “Plaintiffs who are victims of sexual assault should know at the earliest opportunity that the issue of liability is a non-issue… It is equally important that the defendant understand now, and not later, that liability is no longer an issue.” In granting the motion, the judge said it would be “a rare case where partial summary judgment would not be granted” in circumstances like the ones before him.

Of course, as confirmed by Edwards RSJ, even after liability stops being an issue for resolution because summary judgment on liability has been granted, the plaintiffs must still prove their damages and what caused these. Likewise, if there are other defendants besides the individual defendant who has been criminally convicted, the liability of those defendants will remain to be determined.

It should be noted that Lambert v. Lambert involved a conviction arising from a guilty plea. In law, a guilty plea is an admission of wrongdoing by the accused person. Previously, the Ontario Court of Appeal in Franco v. White 2001 CanLII 24020 upheld a decision to grant partial summary judgment on liability in a sexual assault case in which the accused had entered a plea of “not guilty” and then faced a trial on the merits that resulted in a verdict of “guilty” by the jury.

Here are some “takeaways” from Franco v. White and Lambert v. Lambert, as well as my own years of experience litigating these kinds of cases, that are aimed at helping the reader navigate whether to bring or resist a motion for partial summary judgment on liability in a civil sexual abuse case that follows a conviction (that has not been successfully appealed) in a criminal case involving overlapping parties and issues:

1) Section 22.1 of the Ontario Evidence Act provides that proof of a person’s conviction is proof in another subsequent proceeding that the criminal offence was, in fact, committed by that person unless there is evidence to the contrary. In short, the Evidence Act creates a statutory presumption of wrongdoing in the face of a conviction. This has also been described as giving rise to prima facie proof (to be distinguished from conclusive proof) of the fact of guilt in a later civil proceeding. Other jurisdictions in Canada have similar provisions in their respective Evidence Acts.

2) Proof of a person’s prior conviction is proof not only of the guilty finding, but also of the “essential facts” underlying the criminal offence for which the person was found guilty – i.e., that the person committed certain unlawful acts with the state of mind (or intent) necessary to result in criminal guilt for the particular offence.

3) As a result, convicted defendants cannot re-litigate the essential facts underlying the criminal offence. This means they cannot lead evidence to contradict the key facts behind their convictions.

4) However, the statutory presumption of wrongdoing created by the Ontario Evidence Act (and other Evidence Acts across Canada) can, in certain circumstances, be rebutted (or countered). As the Ontario Court of Appeal in Franco v. White said, “Summary judgment does not follow automatically upon a criminal conviction if the defendant can show that despite the conviction, there is an issue to be tried.” The courts have accepted that defendants may rebut the presumption of wrongdoing to which a conviction gives rise. To do so, they will need to adduce compelling evidence that, in the context of a summary judgment motion, gives rise to a triable issue or, if at trial, is sufficient to discharge the defendant’s rebuttal onus of proof. Examples of where the effect of a conviction may be successfully rebutted are where the conviction was vague, and there was not sufficient similarity between the facts giving rise to the civil claim and those underlying the conviction, or where a defendant lacked adequate incentive to fully defend a minor criminal charge, and it would be unfair to hold the defendant to that result when facing more serious consequences from a civil action. The case law suggests it will be rare for a court to look behind a criminal conviction and find it cannot be relied upon in a subsequent civil proceeding. Certainly, a previously convicted defendant cannot simply repeat their plea of not guilty and assert a blanket denial of the allegations, and expect this to be sufficient to rebut the presumption of guilt. More than this is required.

5) The documents from the criminal proceeding that civil lawyers on both sides need to collect and rely upon to prove (or rebut) the presumption of wrongdoing in the civil proceeding include:

(a) A certificate of conviction (see s. 22.1(3) of Ontario’s Evidence Act, which addresses how to prove a conviction);

(b) In the case of a guilty plea, the transcript of the criminal proceeding that includes the agreed statement of facts, the judge’s reasons for guilty verdict, and the judge’s reasons for sentence; and

(c) In the case of a contested trial on the merits, the transcript of the criminal proceeding that includes the judge’s jury charge and the jury’s verdict (where it was trial by jury), and in a trial by judge alone, the judge’s reasons for conviction, and the judge’s reasons for sentence. (See s. 5 of Ontario’s Evidence Act which addresses admissibility of transcripts and s. 36(1) for when judicial notice can be taken of a judicial document like a judge’s reasons, order, and judgment.)

6) For plaintiffs and their lawyers, there is good legal authority for shortening the civil litigation process by, in effect, taking a big (and often difficult) piece of what has to be proven – namely, the factual allegations of the assault(s) that underpin civil liability – out of the equation. This potentially means a more streamlined litigation process, including a narrower scope for documentary and oral discovery of the plaintiff and a shorter and less distressing process for the plaintiff, who will not be called upon to repeat and re-live the details of what happened through oral examination for discovery, a defence medical examination, and/or at trial through their testimony.

7) However, there are many practical considerations that plaintiffs and their lawyers will need to bear in mind when deciding whether to move for partial summary judgment on liability. These include:

(a)Whether this means they must confine the causes of action pleaded in their Statement of Claim to those that most closely resemble the elements of the criminal offence for which the defendant was convicted, or abandon certain causes of action that introduce new elements that will have to be separately proven to establish liability. In Franco v. White, for example, the plaintiff on the summary judgment motion made a strategic decision to abandon her claims for breach of trust, negligence, and intentional infliction of mental suffering asserted in her Statement of Claim and to limit her claim to one for civil sexual assault. In some cases, restricting the claim made to what aligns most closely with the criminal offence on which the conviction was based will not capture the full extent of the wrongdoing and its impacts;

(b) Whether removing liability from the equation might unduly narrow the defendant’s documentary and oral discovery obligations

(c) Whether the conviction is based on facts that do not cover the full range of factual allegations in terms of types and nature of occurrences and potentially aggravating factors, like threats, violence, breach of trust, and being made to submit to particularly degrading or humiliating acts. If so, there will be good reason not to pursue partial summary judgment, so the full scope of the wrongdoing is before the court when it assesses damages;

(d) Remember that a plea of “guilty” is often based on an agreed statement of facts, which reflects a compromise between the Crown and the accused person. Such a statement will need to be reviewed carefully to determine what was omitted, and how any omissions may detract from the plaintiff’s civil claims for liability and damages;

(e) Whether, in order to prove compensatory damages in the civil proceeding, evidence with respect to the facts of what happened are necessary and helpful to the plaintiff’s case;

(f) Whether, in order to overcome the impediments to punitive damages where there has been a prior conviction (see T. v. D.T., 2021 ONSC 5926 for the guiding principles in this regard), it is necessary to adduce evidence as to what exactly occurred and how, for example, this extended beyond the facts supporting the criminal conviction; and

(g) Whether defence counsel will voluntarily agree to limit discovery of the plaintiff to the issues of damages and their causes. If the Statement of Defence contains a complete denial of wrongdoing despite the prior conviction, determine whether it is worth trying to reach an agreement with the defence lawyer(s) that they will not question the plaintiff on what happened, and will agree to limit their examination to what impacts the assaults (and other events) had on the plaintiff.

For convicted defendants and their lawyers, the following should be considered from the outset:

(a) Whether a blanket (or complete) denial of liability in a Statement of Defence, response to a motion for summary judgment on liability, and/or Request to Admit is advisable, bearing in mind that doing so could give rise to additional damages being awarded against the defendant for their refusal to accept the guilty verdict and their lack remorse and/or an unfavourable cost award for prolonging the litigation;

(b) If the allegations in the civil lawsuit extend beyond the essential facts on which the criminal conviction was based, then consider asserting a partial denial of liability in which only the allegations of fact that extend beyond those that were foundational to the conviction are disputed;

(c) If evidence to rebut the statutory presumption of wrongdoing that arises from a conviction is available, be sure to plead the relevant facts in the Statement of Defence and to adduce this evidence in response to a motion for partial summary judgment on liability and/or to lead it at trial; and

(d) If the presumption of wrongdoing from the conviction is unassailable, then look for ways to shorten the litigation and its associated expense by conducting an examination for discovery of the plaintiff that is focused on damages (and telling the plaintiff’s lawyer in advance that this is the intent), and looking for early opportunities to settle the action.

Unlike a prior acquittal which is not relevant nor admissible in a civil case (see, for example, Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427), a prior conviction has many implications for a later civil lawsuit involving the same parties and essential facts. The potential for summary judgment on liability is just one of these implications. Our courts have made it clear that a criminal conviction can be advantageous for plaintiffs in a later civil action, as it may dispense with the need to prove liability against convicted defendants. The decision to proceed with a motion for partial summary judgment and what position to take in response to such a motion are matters deserving careful and strategic consideration by the parties to a civil lawsuit and their lawyers.

While a prior conviction is by no means a prerequisite to pursuing a civil remedy for sexual abuse and violence, where a conviction does exist, whether based on a guilty plea or a trial verdict of guilty, it will usually allow plaintiff survivors to move through the civil process towards resolution and some closure, more efficiently and confidently. For defendants – both those who have been previously convicted and others who may share legal responsibility for the wrongdoing – a prior criminal conviction can offer opportunities for a more streamlined and cost-effective resolution of a civil matter.

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Prohibitions On Non-Disclosure Agreements In Canada: Ontario’s Amended Bill 26

Also authored by: Vanshika Dhawan

In our previous blog post discussing prohibitions on non-disclosure agreements and, specifically, Ontario’s Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022, we noted that the Bill would go before Ontario Legislature’s Standing Committee on Social Policy on November 22, 2022. Many stakeholders, including experts, community advocates, and student organizations provided oral and written submissions in response to Bill 26. As a result of the submissions, a number of amendments were made to the content of Bill 26, which the Legislature voted to approve on December 1, 2022. The Bill has now passed its third reading and will be placed before the Lieutenant Governor for Royal Assent.

At the outset, we note that earlier drafts of Bill 26 used the language “sexual abuse” to describe the student-employee relations that universities and other post-secondary institutions would be required to address by implementing policies pursuant to the Bill. Now, Bill 26 uses the broader term “sexual misconduct” throughout. Though institutions may still implement their own definitions of “sexual misconduct” in their respective policies, this change acknowledges that “abuse” carries the connotation of physical acts, whereas “misconduct” more readily encompasses both physical and non-physical inappropriate sexualized behaviours.

The most significant amendments to the Bill were made in the subsection that addressed non-disclosure agreements (NDAs). In our previous blog, we examined the subsection restricting NDAs, stating that the provisions, as drafted, were too narrow as NDAs would only be prohibited where “determinations” of sexual abuse were made by a “court, arbitrator, or other adjudicator”. We also addressed the fact that the Bill lacked provisions allowing for NDAs in contexts where it was the survivor-student’s expressed wish and preference. These concerns were also reflected in written submissions made to the Standing Committee by the Canadian Centre for Legal Innovation in Sexual Assault Response (CCLISAR), of which Elizabeth Grace was a signatory.

The amended Bill 26 expands the restrictions on NDAs. These no longer apply only to “determinations” (or findings) of sexual abuse. Now, agreements and settlements entered into after Bill 26 takes effect cannot prohibit the disclosure of the fact that an “allegation or complaint” of sexual misconduct was made against an employee. This means a formal investigation or adjudication process is not necessary to trigger this subsection, and NDAs are restricted as soon as such an allegation or complaint is made. This is a broad prohibition.

In addition, survivor-centric exceptions to restrictions on NDAs have also been explicitly carved out in the amended Bill 26. Similar to the broader legislation introduced (or being introduced) in other provinces, institutions can enter into agreements of set and limited durations that prohibit disclosure of the fact that an allegation or complaint of sexual misconduct was made where the survivor-student requests it. However, there are certain safeguards put into place. For example, the survivor-student must have a reasonable opportunity to receive independent legal advice, there must be no undue attempts to influence the student, and the agreement must include the opportunity for a student to decide to waive their own confidentiality in the future, as well as the process by which to do so.

While it remains to be seen whether these restrictions on NDAs will be expanded to other sectors as we, CCLISAR, and others have urged, the submissions by experts, community members, and student organizations, among others, have led Ontario Legislature to place survivors, rather than alleged perpetrators and their institutional employers, at the centre of these amendments to Bill 26. We believe this is a step in the right direction and that it will, hopefully, encourage greater accountability from perpetrators and their post-secondary education employers and thereby contribute to reducing the epidemic of sexualized violence in our society.

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CCLISAR’s Submission On Bill 26 To The Standing Committee

On November 22nd, written and oral submissions were made to the Standing Committee on Social Policy regarding Ontario’s Bill 26, which addresses the use of Non-Disclosure Agreements (“NDAs”) related to sexual abuse in the context of post-secondary education.

As a member of the Canadian Centre for Legal Innovation in Sexual Assault Response (“CCLISAR”)’s advisory committee, Elizabeth Grace, a recognized expert in the area of civil liability for sexual abuse, was a signatory of the following submission. CCLISAR’s submission addressed Bill 26’s provisions which aim to legislatively restrict NDAs where students have been sexually abused.

CCLISAR is an independent, charitable organization that works to aid survivors of sexualized violence by researching the barriers and perceived barriers to reporting sexual assault and adjudicating claims of sexualized violence. Through this research, the organization hopes to better understand how the experiences of survivors of sexual assault are affected by Canada’s laws and policies.

CCLISAR’s submission on Bill 26 to the Standing Committee praises this first step to limit the use of NDAs in Ontario, and makes recommendations for additions to the Bill to improve access to justice for survivors of sexual abuse and enhance accountability where this abuse is determined to have occurred.

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Attention:

Vanessa Kattar, Committee Clerk

Goldie Ghamari, MPP for Carleton, Committee Chair

France Gélinas, MPP for Nickel Belt, Committee Vice-Chair

Dear Chair Ghamari, Vice-Chair Gélinas and Committee Members,

RE: Submissions on Bill 26, Strengthening Post-Secondary Institutions and Students Act, 2022

We write with submissions on Bill 26 and, in particular, on proposed sub-section 16.1(5) of Schedule 1 and sub-section 32.0.1(5) of Schedule 2, both of which aim to legislatively restrict non-disclosure agreements (“NDAs”). Overall, we commend this first step to limit, by statute, the use of NDAs in Ontario.

The Canadian Centre for Legal Innovation in Sexual Assault Response

The Canadian Centre for Legal Innovation in Sexual Assault Response (“CCLISAR”) is a charitable and non-partisan organization that seeks to better understand the gap between Canada’s laws and policies and its effects on the social problem of sexual harm and the experiences of survivors of sexualized violence. This includes research into the barriers and perceived barriers to reporting sexual assault and effective mechanisms and design frameworks for adjudicating claims of sexualized violence. CCLISAR as an organization has engaged in research and education with respect to NDAs, which has included assessing problems associated with their use in Canada, the legislative efforts to date in this country and elsewhere in the world to restrict them, and the risks and benefits of prohibiting NDAs. A year ago, prompted by Prince Edward Island’s then emerging legislation on NDAs, CCLISAR convened a cross-country panel of legal experts to consider the nature and scope of NDAs in Canada and how to craft solutions to the problems posed by NDAs. For the Committee’s review and consideration: CCLISAR’s recent Position Statement on Legislation Prohibiting Non-Disclosure Agreements is available online.

Joanna Birenbaum is CCLISAR’s Director of Capacity Building and Elizabeth Grace is a member of CCLISAR’s Advisory Committee. We are also both legal practitioners in Ontario with many decades of collective experience in the areas of civil litigation and administrative/regulatory processes and remedies for sexual abuse and violence, which include investigations into sexualized misconduct allegations in contexts like the post-secondary educational sphere. Joanna (called to the Ontario bar in 1998) is a litigator with expertise in multiple areas of law related to sexualized violence, including representing survivors in civil sexual assault claims, anti-slapp applications, and sexual history and records application in criminal proceedings. She prosecutes sexual abuse discipline hearings for a regulated health college and has been the chair of three CCLISAR Independent Review Panels of University sexual violence policies and practices (the reports from these reviews are available here). She is also the co-author of the recent book, Achieving Fairness: A Guide to Campus Sexual Violence Complaints (2020). Elizabeth (called to the Ontario bar in 1995) is a partner of the law firm Lerners LLP, an experienced civil litigator in the sexual abuse field on behalf of plaintiffs and defendants, and an author and co-author of multiple publications in the abuse area, including the seminal book Civil Liability for Sexual Assault and Violence in Canada (2000). In May 2015, she participated in making written and oral submissions for law reform to Ontario’s Select Committee on Sexual Violence and Harassment.

Scope of submission

This submission addresses only the NDA-related proposed amendments to the Ministry of Training, Colleges and Universities Act, 1990 (Schedule 1) and the Private Career College Act, 2005 (Schedule 2) regarding sexual abuse at post-secondary educational institutions, as outlined in Bill 26.

Generally, we welcome legislative amendments that enhance protections for post-secondary students who are subject to sexual abuse by employees of post-secondary institutions and we support the NDA-related aspects of Bill 26. We are also heartened to see that Ontario is taking a first step to prohibit NDAs, since these are often used as a tool to silence survivors of sexualized violence and to prevent accountability by institutions and (alleged) abusers. The fact Ontario has chosen to start by introducing legislative reform in the post-secondary context, where there is a pronounced power-imbalance between students and employees like professors and instructors, is a positive development. We trust this important initiative will be followed by consultation with stakeholders and, ultimately, further legislated restrictions on NDAs in other contexts. Consistent with CCLISAR’s attached Position Statement, we support a nuanced approach to NDA prohibitions. We believe parts of Bill 26 should be revised to improve access to justice for post­secondary student survivors of sexual abuse and to promote institutional and (alleged) abuser accountability, and in this connection make the following observations and recommendations.

1. The word “investigator” is missing and should be added.

The proposed amendments at sub-s. 16.1(5) in Schedule 1 amending the Ministry of Training, Colleges and Universities Act, 1990 and at sub-s. 32.0.1(5) in Schedule 2 amending the Private Career College Act, 2005 provide that agreements between an institution and “any person” shall not contain any term that prohibits the institution from:

“disclosing the fact that a court, arbitrator or other adjudicator has determined that an employee of the institution has committed an act of sexual abuse of a student of the institution…” [emphasis added].

This provision does not explicitly include an internal or external investigator and the determinations resulting from their investigation. Presumably an “adjudicator” would include an adjudicative body like the Human Rights Tribunal of Ontario, but it is unclear whether it would extend to an investigator who is tasked with assessing credibility, applying legal principles, and making findings. The term “adjudicator” is not defined either in the proposed amendments or in the legislation being amended. This leaves ambiguity as to whether an “investigator” under a post-secondary institution or private career college sexual violence policy will be captured by this language.

This apparent oversight is of concern given that a large number of sexual abuse complaints arising in post-secondary educational contexts are resolved by way of internal and/or external investigations, often followed by settlement agreements between the institution, the (alleged) abuser and/or the complainant. These investigatory and resolution processes often do not escalate to the level of involving courts, grievance or other forms of arbitration, or formal adjudications by administrative tribunals. Without the explicit inclusion of “investigators” in the proposed amendments, survivors may be left without the protections the legislation seeks to introduce, sexual abuse that has been determined to have occurred may continue to be concealed through the tool of NDAs, and institutions and abusers may not be held accountable.

Recommendation: We therefore recommend that sub-s. 16.1(5) in Schedule 1 and sub-s. 32.0.1(5) in Schedule 2 be revised to include explicit reference to “investigator”.

2. Provisions preventing disclosure of the student-survivor’s identity and accounting for the student-survivor’s NDA preference should be added.

Bill 26 marks a first step in Ontario to addressing NDAs in the context of sexual abuse. This follows other legislation passed in Prince Edward Island and introduced in Nova Scotia and Manitoba that prohibits settlements that silence survivors from speaking about their experiences related to sexualized violence. Bill 26 instead prohibits institutions from insisting on, or agreeing to, confidentiality as a term of settlement. This is a good and valid approach that we support. However, we recommend revisions to expand the proposed language, as follows.

First, Schedules 1 and 2 should include explicit language stating that institutions and persons related to the institution, including the individual employee found to have committed sexual abuse, must not disclose the student’s name or identifying information, except with the student’s express and informed permission.

Second, the proposed legislation applies to “[a]n agreement between an institution and any person”, including the student-survivor. This would mean that where a survivor declares an intention to bring, or brings, a claim against an institution following a finding of sexual abuse by an investigator or other adjudicator, the institution may not commit to keeping the fact of this finding and the identity of the perpetrator confidential. However in narrow and defined circumstances, a survivor-complainant should be allowed to have their preference for a NDA respected. In this connection, we note other jurisdictions in Canada with actual or proposed legislation restricting NDAs have provisions that carve out exceptions to NDA prohibitions, where it is the express wish and preference of the survivor-complainant and not contrary to the public interest. This exception is missing from Bill 26. A blanket prohibition of the kind found in Bill 26 does not consider the varying circumstances and needs of survivors. There are numerous reasons why a survivor of sexual abuse may wish to enter into an NDA, including but not limited to reputational, safety, reprisal and professional concerns.

Third, given that sexualized violence is fundamentally about the abuse of power, it is essential that where a determination of sexual abuse is made following a complaint by a student, the student-complainant not have more power taken from them. They should have a say and be given a reasonable opportunity to obtain independent legal advice (ILA) via Ontario’s existing and government-funded ILA program for sexual abuse or other means. In this way, they can make an informed decision without risk of undue influence or coercion about their position regarding disclosure of their own identity and the potential advantages and disadvantages of a NDA in their particular situation.

Recommendation: We therefore recommend that language be added to Schedules 1 and 2 to prohibit the institution and any person related to the institution, including the individual employee found to have committed sexual abuse, from disclosing the student-survivor’s name or identifying information, except with the student’s express permission. We also request the addition of an exception that allows for NDAs in circumstances where it is the express wish and preference of a complainant-survivor whose allegations of sexual abuse have been determined to have merit by an adjudicator or investigator. Lastly, we favour explicit reference in the legislation to (i) a survivor’s right to obtain independent legal advice should they wish their identity to be disclosed or want a NDA, and (ii) a requirement that institutions advise survivors of this right and of the availability of government-funded ILA to assist them in their decision-making. While we do not endorse specific language of any particular or proposed legislation in Canada, we emphasize the importance of an approach that promotes greater access to justice for survivors of sexualized violence and greater accountability by those who have been determined to have committed sexual abuse and, where applicable, the institutions which have employed or otherwise facilitated the commission of the abuse.

Finally, we would be remiss if we did not comment on the narrow scope of Bill 26. NDAs should be regulated beyond the post-secondary educational sphere. We strongly encourage the Government of Ontario to introduce legislation, after consultation with stakeholders including legal practitioners and organizations that work with sexual assault survivors, that restricts the use of NDAs in respect of claims of sexualized violence in all contexts (for example, in institutional settings beyond the post-secondary education sphere).

Thank you for this opportunity to have input into Bill 26.

The Canadian Centre for Legal Innovation in Sexual Assault Response

Per:

Joanna Birenbaum, Director of Capacity Building

Per:

Elizabeth Grace, Advisory Committee member

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Prohibitions On Non-Disclosure Agreements In Canada: PEI, Ontario, And Beyond

Authored by: Zahra Vaid, Elizabeth Grace and Vanshika Dhawan

One year after PEI’s Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in the province’s legislature, discussed in our blog In the Hot Seat: Non-Disclosure Agreements in Cases of Sexual Violence, multiple jurisdictions across Canada have been prompted into action.

Nova Scotia, Manitoba, and most recently, Ontario have tabled provincial legislation to regulate the use of non-disclosure agreements (“NDAs”). While Nova Scotia and Manitoba have introduced broad legislation to regulate NDAs in the context of sexual harassment and discrimination similar to what became law in PEI, Ontario’s initiative is narrower and deals only with sexual abuse in the post-secondary education sphere.

The Developing Approach to Regulating NDAs – PEI, Nova Scotia, and Manitoba

Prince Edward Island’s Non-Disclosure Agreements Act was passed on November 17, 2021 and came into force on May 17, 2022. Its purpose is to restrict the use and content of non-disclosure agreements in cases of sexual harassment and discrimination in all out-of-court settlements where a survivor does not want it. It is the first legislation of its kind in Canada. It follows the introduction of similar legislation in jurisdictions across the United States, as well as efforts currently underway in the United Kingdom, Australia, and Ireland. Though the impact of PEI’s Non-Disclosure Agreements Act has yet to be seen, other Canadian jurisdictions are following suit.

In Nova Scotia, a private member’s bill, Bill 144, Non-Disclosure Agreements Act, was introduced to limit the use of NDAs and confidentiality clauses in cases of discrimination and harassment, including sexual harassment. Nova Scotia’s proposed legislation is similar to PEI’s, with nearly identical language. If passed, Nova Scotia’s Non-Disclosure Agreements Act will only allow NDAs where it is the express wish and preference of the survivor, they have had an opportunity to obtain independent legal advice, and no undue attempts to influence them have occurred. Bill 144 passed its first reading on April 7, 2022.

In Manitoba, a private member’s bill, Bill 225, Non-Disclosure Agreements Act, was introduced to restrict the use of NDAs related to claims of harassment and discrimination, with the goal of better protecting survivors of sexual violence. Its language is substantially similar to that used in PEI and Nova Scotia. As of October 2022, Bill 225 has passed its second reading.

All three of these legislative schemes, whether enacted or proposed, put survivors of sexual violence in the driver’s seat. In other words, the NDA is prohibited unless a survivor makes a free and informed choice to enter into an NDA. This includes a reasonable opportunity to receive independent legal advice. However, even when the NDA is the expressed wish and preference of the survivor, it may still be prohibited in certain contexts, such as when the NDA adversely affects the public interest. All three schemes also provide that the NDA must allow for the survivor to waive the confidentiality by a process set out in the agreement itself.

PEI, Nova Scotia, and Manitoba have each introduced broad legislation aimed at varying forms of harassment and discrimination, extending beyond sexual violence. Ontario’s emerging approach is much more limited. It is focused only on a single sector – post-secondary education – and it deals only with “sexual abuse”.

Ontario’s Unique Position in Regulating NDAs

On October 27, 2022, Ontario’s Minister of Colleges and Universities Jill Dunlop introduced Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022. Since its second reading, Bill 26 has been referred to the Standing Committee on Social Policy, which is expected to convene next week.

If ultimately passed, Bill 26 would amend existing legislation to require post-secondary institutions to implement policies to address sexual abuse perpetrated by faculty and staff against students. The proposed scheme would prohibit the use of NDAs in specific contexts.

Bill 26 provides a minimum definition of sexual abuse, informed by the Criminal Code and Human Rights Code, that includes physical sexual relations and touching, behaviour, or remarks of a sexual nature. The proposed legislation empowers post-secondary institutions to further define conduct that falls under sexual abuse in their respective policies.

Bill 26 would also allow institutions to discharge or discipline employees who have committed “sexual abuse”, as defined, against students and to create a prohibition for these employees’ re-employment even when doing so would violate existing employment contracts. The also reinforces former Premier of Ontario Kathleen Wynne’s “It’s Never OK: An Action Plan to Stop Sexual Violence and Harassment” by requiring post-secondary institutions to develop a sexual misconduct policy.

With respect to NDAs specifically, Bill 26 targets agreements, including settlements, which post-secondary institutions make with employees who were found to have committed sexual abuse. If Bill 26 passes, these agreements cannot contain provisions that prohibit the institution from disclosing that an employee was found to have committed sexual abuse against a student. The application of this in Bill 26 is narrow – it would only apply to findings of sexual abuse made by “a court, arbitrator, or other adjudicator.”

Notably, “adjudicator” is not defined in Bill 26 or relevant existing legislation. It is unclear whether “adjudicator” would include internal or external investigators, who are frequently brought in by post-secondary educational institutions to review and address concerns about sexual abuse and harassment. This is particularly problematic considering settlements often follow such investigations, and occur before courts or arbitrators become involved.

It seems Bill 26 affords post-secondary institutions significant discretion. Not only can they define “sexual abuse” in their own internal policies, but it is likely also open to them to define who constitutes an “adjudicator”. This would mean that individual institutions can determine whether the proposed legislative amendments apply to settlements that occur after investigations have determined that allegations of sexual abuse have merit.

Notably, there are no provisions in Bill 26 that speak to the wishes and preferences of the student survivor of sexual abuse. This could lead to situations where a survivor wishes to have an NDA in place but Bill 26 does not allow it. Further, the Bill’s prohibition on NDAs only prevents the disclosure of the fact an employee was determined to have committed an act of sexual abuse against a student. It would still be possible for limitations to be placed on what a survivor can say about their experience, the impacts this has had on them, and the terms of any settlement, including the amount paid.

Ultimately, if royal assent is obtained, these amendments would come into effect on July 1, 2023. The proposed amendments would not apply retroactively to agreements and settlements that pre-date the coming into force date of the applicable legislation, although the Bill would override existing collective agreements.

Access to justice for survivors of sexual violence is a key consideration in assessing any legislative effort concerning NDAs. Restricting the use of NDAs increases the likelihood that perpetrators and their enablers will be held accountable and empowers survivors to share their stories. However, in the context of litigation, prohibitions on NDAs can also reduce the likelihood of early settlements. This can lead to longer legal processes, which are not only time-consuming and costly but particularly burdensome on vulnerable and marginalized survivors.

Providing a survivor the opportunity to make an informed and genuine choice on whether or not to enter into an NDA, based on their unique situation and circumstances, is the best option to protect them and enhance access to justice. Affording a survivor this choice may also aid in their healing process, and allow for finality and greater closure. While Ontario’s legislation is a step in the right direction, it is narrow and focuses on the employment relationship rather than on the needs of the survivor. It remains to be seen whether Bill 26 will be further amended to prioritize survivors, or whether the province is content to allow post-secondary institutions to develop and implement specific policies regarding NDAs and sexual misconduct. It also remains to be seen whether similar prohibitions on NDAs will be introduced in other sectors in Ontario. One has only to think of elementary and high school students who have been abused by teachers and staff, and who gain nothing from the current proposed legislation, to appreciate how limited in scope Ontario’s Bill 26 is.

Next Steps – A Coordinated Legislative Effort?

While no legislation restricting NDAs has been proposed at the federal level to date, Senator Marilou McPhedran is expected to introduce legislation to the Senate in the coming months to prohibit NDAs for specified organizations under federal jurisdiction.

Whatever happens in the federal context, it is clear for now that PEI, Nova Scotia, Manitoba, and Ontario are at the forefront of an evolving discussion in Canada around the need to restrict NDAs. The impact of PEI’s and the emerging legislation will be measured in the years to come and will provide important and practical insight on how to make perpetrators of sexual violence and their enablers more accountable so the extent of this widespread problem in society is reduced, while also facilitating access to justice for survivors.

In Ontario, the Standing Committee on Social Policy will be reviewing Bill 26 and is holding public hearings on November 22, 2022. This provides anyone interested in providing input on the proposed legislation an opportunity to make written submissions to the committee by 7:00pm on November 22. More information on how to do this can be found on the Ontario Legislature’s website.

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Recent Compensation Awards Made By Courts To Women Who Were Sexually Assaulted As Adults: Factors That Affect Amounts For Pain and Suffering

Damages for pain and suffering and loss of enjoyment of life in civil sexual assault cases involving women who were violated and abused as adults (not children) have long been undervalued, but following the Court of Appeal for Ontario’s landmark 2018 decision in Zando v Ali, have things changed?

In Zando, a case involving one occasion of sexual assault against a female physician by her male physician colleague, the Court of Appeal confirmed that the range of damages for pain and suffering for a single incident of penetrative sexual assault against an adult woman was, in 2018 dollars, $144,000 to $290,000. Adjusted for inflation, this now amounts to a range of $162,985 to $328,234. The plaintiff in Zando was awarded $198,072 (in 2022 dollars) for pain and suffering, even though the defence had tried to use the fact that there was no evidence of long-term psychological trauma to lessen her entitlement. The Court of Appeal, upholding the trial judge’s award, confirmed that “damages for sexual battery or assault are not solely to compensate for physical or mental injuries.” Rather, an award for pain and suffering fulfills a range of functions, including “the recognition of the humiliating and degrading nature of the wrongful acts.”

Following Zando, courts have continued to recognize the profound and often lifelong harms caused by a single incident of sexual assault, and this is now being more appropriately reflected in damage awards for pain and suffering for adult survivors of sexual assault and violence. For example, in a recent Ontario case, J.B. v R.B., 2021 ONSC 1023, the plaintiff, who was 33 years old at the relevant time, was sexually assaulted on one occasion while she was sleeping, resulting in pregnancy. Following the defendant being noted in default, the plaintiff moved for default judgment. The plaintiff was awarded $275,000 for pain and suffering, with the court recognizing the “humiliating and degrading nature” of what the plaintiff had endured.

Outside of Ontario, courts have not been prepared to define an acceptable range of compensation for cases involving adult victims of sexual abuse. However, there have been some recent, noteworthy awards made by courts in civil cases outside of Ontario involving both single and repeated sexual assaults on adult women, for example:

ES v Shillington, 2021 ABQB 739 – the plaintiff was repeatedly physically and sexually assaulted by her male spouse. He also posted intimate photographs of her online without her consent. The Alberta court awarded her $225,000 for pain and suffering, stating that the acts perpetrated against her were meant to “control, degrade and humiliate” her, and the impacts she experienced would be “long-lasting and severe.”

Anderson v Molon, 2020 BCSC 1247 – the plaintiff, who was 26 years old at the relevant time, was sexually assaulted by her Catholic priest 70 to 100 times over a series of months. In addition to a substantial punitive damages award, the B.C. court awarded the plaintiff $275,000 for pain and suffering.

D. v Mostowy, 2021 BCSC 1920 – the plaintiff, who was 44 years old at the relevant time, was groomed and repeatedly sexually assaulted by her male boss in the workplace. The assaults involved back and shoulder massages, and escalated to him masturbating on her breasts. The B.C. court awarded her $157,500 for pain and suffering.

M. v Contreras-Ramirez, 2021 BCSC 1341 – the plaintiff as an adult woman was sexually assaulted by her male massage therapist on one occasion. The assault involved groping and digital penetration. The matter was disposed of summarily. The B.C. court awarded her $100,000 for pain and suffering.

Y.H. v Y. LTD, 2021 SKQB 28 – the plaintiff, age 50 at the time, was sexually assaulted on one occasion by a male stranger. While on a bus trip, the bus driver pulled down the plaintiff’s clothing, sucked on her breasts, and attempted to digitally penetrate her. The sexual assault included violence. The Saskatchewan court awarded her $100,000 for pain and suffering, commenting that “all sexual assaults involve a violation of the victim’s sexual integrity.”

While there are many aggravating factors that may entitle a plaintiff to greater damages for pain and suffering, such as their age and vulnerability at the time of the assault or how repeated, violent, or invasive the assault was, as confirmed in Zando and as shown by the recent cases discussed above, there is a deepening recognition by the courts of the inherent wrongfulness and harmful consequences of sexual assault and abuse, including for a single incident.

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