LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
When “Yes” Doesn’t Mean Yes: How Civil Courts Look At Consent In Sexual Assault Cases Differently Than Criminal Courts
Elizabeth Grace discusses the challenges faced by survivors of sexual assault in the criminal justice system, contrasting how consent is treated in criminal law where the Crown must prove beyond a reasonable doubt there was no consent, with its treatment in civil cases, where the onus is reversed and the defendant is the one who must prove there was consent. Civil lawsuits, she says, present a more accessible path to justice for survivors.
Like many, I have been distressed by the news of the world junior hockey sexual assault trial taking place in London, Ontario.
I am particularly dismayed to hear about the complainant “E.M.’s” nine-day ordeal on the stand, being questioned first by the Crown, then cross-examined by each of the lawyers for the five accused hockey players, and then re-examined by the Crown.
It is hard to fathom how a person can survive such a process, where every word spoken or not spoken, word written or not written, and action taken or not taken is put under a microscope years after the fact, and all the defence lawyers have to do is point to reasonable doubt about whether there was no consent in order to secure acquittals for their clients.
The bar is not high, and defence lawyers are given a lot of latitude in their cross-examinations because their clients’ liberty is at stake. And the men who stand accused are under no obligation to get in the witness box themselves to present their side of the story. Again, because their liberty is at stake, they have a right to remain silent.
PUBLICLY SCRUTINIZED
In the meantime, a complainant like E.M. has put their life on hold while they are publicly scrutinized, disbelieved and discredited, all in the name of being a witness for the Crown whose role is to advance society’s interest in ensuring justice is done and criminal conduct is called out and punished.
Because of high-profile criminal cases like the junior hockey case, most of us think in criminal terms about what consent means in a sexual assault case. This ignores the fact that survivors do have options. They do not have to go to the police and have their attackers charged criminally, which then requires them to submit to a hostile criminal process over which they have no control. Many survivors choose, instead, to sue their attackers in civil court.
CONCEPT OF “CONSENT”
Although the concept of “consent” is used in both criminal and civil sexual assault cases, judges approach it differently when the case is about money damages (civil) rather than time in prison (criminal). Understanding the differences in approach can help demystify headlines and news reports, and clarify why a civil lawsuit can succeed where a criminal charge fails.
In criminal law, the Crown must prove, beyond a reasonable doubt, three things:
that sexual touching happened,
that it was not consented to, and
that the accused knew or should have known there was no consent.
In other words, Crown prosecutors must show a clear “No” to sexual touching.
Civil law flips the burden. There is no Crown prosecutor acting in the public interest, and the alleged perpetrator has no right to remain silent. A civil lawsuit is a private dispute where the person who sues (the plaintiff) is asking to be compensated for a wrong inflicted on them. The plaintiff only has to show, on a balance of probabilities (meaning more likely than not), that the touching happened and was intended.
Once the plaintiff also alleges the touching was non-consensual, the legal onus for consent shifts to the defendant (the alleged attacker) to prove that genuine consent existed, or they reasonably believed it did.
This switch makes civil claims easier to win than criminal charges. This makes sense: in civil court a wrongdoer’s wallet is at risk, not their liberty, so it follows that a sexual assault will be easier to prove in the civil context.
LEGALLY (IN)VALID CONSENT
Be aware too that, no matter whether it is criminal or civil court, not every “Yes” counts as legally valid consent. Consent has to be free and informed. Classic examples of legally invalid consent include minors, people facing threats, or situations involving force or deception.
The law is more nuanced when alcohol or drugs are involved. Being drunk does not automatically erase the ability to choose; courts use a sliding scale. Someone who is so impaired they cannot understand what is happening clearly cannot consent. But someone who is merely intoxicated, even to the point of poor judgment, may still provide a legally effective “Yes.” Where the line falls depends on the facts of each individual case.
Civil courts add another important consideration: The impact of unequal relationships. In a landmark Supreme Court of Canada decision involving a doctor who traded prescriptions for sex with his drug-dependent patient, the court found that consent obtained through the exploitation of an overwhelming power imbalance is no consent at all.
Judges in civil cases ask two key questions.
First, is there a special relationship — such as teacher/student, employer/employee, clergy/parishioner — where one side clearly holds sway?
Second, did the more powerful party use that position for their own sexual gratification?
If both answers are “Yes,” any supposed consent to sexual activity is effectively eliminated. The law views it as coerced consent, even if no threats were uttered and the weaker party seemed to go along willingly, or was even the one who initiated sexual contact.
RELATIONSHIP DYNAMICS
Because defendants in civil cases are the ones who have to prove there was real consent, their lawyers must be alive to a relationship’s dynamics: relative ages or education levels, emotional or financial dependence, and any vulnerabilities such as addiction, are all things that matter. They must also consider whether other claims — like breach of fiduciary duty — might still succeed even if assault and battery claims are defensible.
Courts have sometimes ruled that a relationship was “consensual” for one purpose yet still unlawful for another, such as where a professional engages in sexual contact with a client, thereby betraying that client’s trust.
The takeaway is simple but profound. In civil sexual assault cases, consent is not merely a word uttered in the moment; it is a legal conclusion built on context, capacity, and equality. A nod or a whispered “okay” can unravel once the power structures behind the gesture or word spoken are considered.
Civil law aims to safeguard true autonomy so survivors have a realistic path to justice when their supposed “consent” was, in law, really no consent at all.
Contact ELIZABETH Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
Wagg Motions: Reforms Needed To Stop Delays And Unnecessary Costs When Accessing Criminal Records For Civil Sexual Assault Proceedings
In Ontario, access to evidence from a related criminal proceeding for civil sexual assault cases requires a formal legal process called a "Wagg motion," which often causes significant delays and costs, prompting calls for a streamlined, non-court-involved alternative. Carly Moore examines the issues.
A question that often arises in civil sexual assault proceedings is how to gain access to evidence collected for the purpose of a related criminal proceeding.
A complainant in a criminal proceeding does not have a right to access any evidence from that proceeding, aside from evidence filed with the court and any records containing their personal information (for example, a copy of their statement to police). This means that sometimes critical evidence initially collected by police, such as DNA evidence or statements made by the accused or others, cannot be easily accessed by those pursuing justice through civil litigation.
“WAGG MOTION”
Instead, in Ontario a formal court proceeding called a “Wagg motion” (brought pursuant to Rule 30.10.10 of the Ontario Rules of Civil Procedure) must be initiated by the plaintiff. The name “Wagg” is derived from the leading 2004 Ontario Court of Appeal decision in D.P. v Wagg.
In Wagg, the defendant faced criminal charges for sexually assaulting his gynecological patient, identified as D.P. Subsequently, D.P. filed a civil lawsuit against her doctor for sexual assault. During the civil proceedings, D.P. requested the defendant to disclose the contents of the Crown Brief, which had been provided to him during the criminal case. The defendant declined to do so. Consequently, the plaintiff filed a motion to compel disclosure of the Crown Brief's contents.
Ultimately, the Court of Appeal agreed with the screening process outlined by the Divisional Court for disclosure of the Crown Brief. The Crown Brief shall only be produced after (1) relevant state agencies have evaluated the public interest implications of releasing the material, and (2) either a court order or the consent of all parties has been obtained.
While these motions are frequently resolved by a court order on consent, it can take many months, if not years, to do so. This is because the following steps must be taken prior to a hearing of the Wagg motion:
The plaintiff (or defendant) must initiate the motion by filing a Notice of Motion and serving it on those non-parties who are in possession or control of the Crown Brief and related documents. In Ontario, this typically includes the Ministry of the Attorney General and the police service involved in the investigation of the criminal matter. The opposing side to the civil claim must also be notified of the motion.
The parties in possession or control of the Crown Brief and related documents must then disclose the Brief’s existence and describe, in general terms, the nature of its contents. Currently in Ontario, notice of a Wagg motion typically prompts the Ministry of the Attorney General to send a form letter to the moving party acknowledging the motion and advising that it will require an adjournment of the motion in order to review the relevant materials. This process often takes in excess of six months due to a backlog of similar requests. Once the screening process has been completed, the Ministry of the Attorney General usually sends a letter to the parties and non-parties outlining the materials in its possession and which materials it consents to produce.
Next, the parties and non-parties will either agree to an order on consent for production of the materials, or the motion will be contested. For example, the plaintiff may take issue with the Ministry of the Attorney General not producing certain documents and request the court order it to do so. In that case, the judge hearing the motion will consider whether the documents are subject to privilege or public interest immunity.
This process is not only subject to administrative delays on the part of non-party record holders, but also encounters the usual delays with obtaining a motion date due to court backlogs. These delays can be particularly detrimental to survivors of sexual assault pursuing justice through civil litigation, who have often already waited several years, if not decades, to bring their civil claims for compensation (whether due to an ongoing criminal proceeding, psychological trauma, or other reasons). Not only can these motions cause significant delays, but they also result in additional costs to the moving party and to the public due to the involvement of various government services and the court.
SIGNIFICANT DELAY AND EXTRA COSTS
Given the significant delay and extra costs caused by having to bring Wagg motions, which are often eventually resolved on consent in any event, the process for obtaining a Crown Brief and similar materials is long overdue for reform. In my view, there should be a specialized, streamlined process for such requests that does not require court involvement, similar to a Freedom of Information request.
This process could be legislated to address privacy and other concerns (including so as not to violate the Freedom of Information and Protection of Privacy Act through the disclosure of personal information). The Ministry of the Attorney General and police services could then negotiate the disclosure of the Crown Brief and similar materials with parties to litigation, so long as the parties undertake not to use those materials for any other purpose (similar to the deemed undertaking rule, which provides that evidence obtained through litigation cannot be used for any other purpose, and imposes potentially serious penalties if it is, including contempt of court). Such an agreement would provide protection for the privacy interests of both parties and non-parties to litigation, as well as address privacy concerns our justice system may have in disclosing the contents of a Crown Brief.
Of course, there will be some cases that are not easily addressed by this more streamlined process and will require court involvement, but in most cases, this transformation would be of great benefit, particularly to survivors.
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Understanding The Risk Of Security For Costs In Civil Sexual Abuse Cases For Survivors Who Live Outside Of Ontario
Lauren Malatesta explains that survivors of sexual abuse pursuing civil lawsuits in Ontario from outside the province may face an order for security for costs — a financial requirement that courts must weigh against access to justice concerns.
We often receive inquiries from people who were sexually abused in Ontario, but now live outside of Ontario. This situation can raise challenges. One of these, which we routinely warn people about, is that they may be required to pay “security for costs” as a condition of proceeding with a lawsuit in Ontario.
What does “security for costs” mean? This is where a court orders a plaintiff (the person making the claim) to set aside money and pay it into court so there is a fund available to cover the defence’s legal costs if, and only if, the defence ultimately wins the case. If the defence loses, the money is returned to the plaintiff. If the money is not paid into court as ordered by the court, the plaintiff will not be allowed to proceed with their case.
While this arises in all kinds of cases (not just sexual abuse) where someone is living elsewhere but claiming compensation in Ontario, there have been some recent court decisions dealing specifically with security for costs in the context of sexual abuse. Here, I will explain what considerations apply to security for costs by making reference to these court decisions, as they illustrate the potential challenges a survivor may encounter if they sue inside one province or territory because the events in question occurred there, but they live elsewhere.
Basic principles
There are many things a survivor should consider before starting a civil lawsuit. One is how you will pay your lawyer’s legal fees. But it is not only your own lawyer’s legal fees and expenses you may be required to pay during a lawsuit. You may also have to contribute to the legal fees and expenses of the person you are suing. These are called “costs.”
In Canada, we have what is called a “loser pays” system. This means if a party loses at trial, or during an intermediate step, then that party will be required to pay some portion of the winning party’s costs. Trouble can arise when the loser, although required to pay the other party’s costs, is unable to do so. As a result, the winner is unable to collect from the loser and is stuck paying their own legal costs
Because of this, Canadian courts have a mechanism for the person who is being sued (the defendant) to ask the court to make an order for “security for costs” from the person suing them (the plaintiff). To make this request, the defendant must bring a motion before a judge. If the defendant is successful, the plaintiff will have to pay money (for example, $50,000) into court as “security” in case they are required to pay the defendant’s costs in the future.
Every Canadian province and territory has rules that outline the types of situations where security for costs could be ordered. The primary example is where the person starting the lawsuit (the plaintiff) lives outside of the province or territory where they started the lawsuit.
Requiring a plaintiff to pay money into court up front as “security for costs” can be harsh. If a plaintiff is unable to come up with the money by a judge-imposed deadline, their case will be dismissed. In other words, requiring someone to pay security for costs may prevent the survivor from continuing with their lawsuit. This is particularly true for people who don’t have the money to pay into the court. This then begs the question: should survivors who lack financial resources to cover defence costs be prevented from starting, or continuing, lawsuits against their perpetrators? This question raises access to justice issues.
Canadian courts agree that the fundamental question is whether it would be just in the circumstances of the case to make the plaintiff post security in order to be allowed to pursue their claim. While defendants are entitled to some protection for their legal costs incurred while defending themselves, it is equally important to consider whether an order for security for costs is likely to frustrate a survivor’s ability to advance a meritorious legal claim.
Put differently, plaintiffs with an arguable case to be made, but who are financially disadvantaged should not be prevented from accessing the courts simply because they lack the financial means to post security. This is particularly true when the survivor’s inability to pay is related to the abuse itself, which may have interfered with their ability to complete their education and enter the workforce, or otherwise achieve their income-earning potential.
Recent court decisions for and against security for costs
Two recent decisions from the Court of the King’s Bench of Manitoba illustrate how these principles are treated in sexual abuse cases.
In C.A. v. N.S.C., 2024 MBKB 179, two sisters started a lawsuit for sexual abuse they said they experienced in the 1970s by a volunteer at their church. Their church was in Manitoba, where they grew up, but the sisters had moved to and were living in Alberta when they started their lawsuit. On a motion to the court, the defendants asked for a court order requiring the sisters to pay security for cost before the upcoming trial. The judge granted the request and the sisters were each ordered to pay $50,000 into the court within 30 days of the judge’s decision.
In reaching her decision, the judge in C.A. considered that the sisters owned property in Alberta, but did not have assets in Manitoba. The judge did not explain how this factored into her decision making, but pointed to a general rule that a defendant should not be put to the trouble and expense of enforcing an order for costs in another province.
The next year, the same judge considered this issue again in Burton v. James, 2025 MBKB 50. The plaintiff started a lawsuit against his former teacher and the school board for sexual abuse he said he experienced in the 1980s. The school board was in Manitoba, but the plaintiff lived in Ontario when he started his lawsuit. The defendant teacher brought a motion and asked for the plaintiff to be required to pay security for costs. The judge said no.
There was evidence put forward on the motion that the plaintiff had little to no money. As such, if the plaintiff had been required to post security, he would have been unable to satisfy the order and, therefore, unable to advance his sexual abuse claim. The fact the plaintiff retained a lawyer on a contingency fee basis, as many survivors do, did not impact the judge’s analysis. In addition, the judge considered the plaintiff’s evidence that the teacher’s sexual abuse impacted his mental health and ability to earn income over the years.
In reaching her conclusion, the judge put significant weight on the fact that, if the plaintiff was required to pay security for costs, his claim against the teacher would not continue due to his lack of financial resources. The judge also noted the plaintiff’s argument that his lack of financial resources was caused by the teacher’s sexual abuse and this argument weighed against granting an order for security for costs.
The judge in Burton distinguished her prior decision in the C.A. case. The judge said the sisters in the C.A. case had significant assets in the form of property and had the time and resources to prepare for a possible costs award. In the Burton case, no amount of time or preparation would have enabled the plaintiff to access the resources necessary to pay security into the court.
Ontario-specific factors
In Ontario, Rule 56 of the Rules of Civil Procedure, and the court decisions interpreting and apply this rule, govern security for costs. What many people do not appreciate is that, in Ontario, there is a statute that can also enter into the equation. The often-overlooked Victims’ Bill of Rights can be another factor for a judge to consider when asked to order security for costs in sexual abuse cases. This legislation applies to victims of crime who are seeking compensation from someone who has been convicted of a crime against them.
The Victims’ Bill of Rights states that a judge should not order victims to pay security for costs unless the judge, having considered the spirit and purpose of the Victims’ Bill of Rights, considers it is necessary to do so in the interests of justice. The spirit and purpose of the Victims’ Bill of Rights is to ensure the fair and compassionate treatment of those who have been victims of crime and suffered harm as a result.
In other words, Ontario’s Victims’ Bill of Rights provides a compelling basis for judges in Ontario to consider whether it is really just or fair to make a survivor pay security for costs simply to pursue their civil suit for compensation. In most cases, where the perpetrator of the abuse has been criminally convicted, the answer will be no. Where there is no criminal conviction, the answer may also be no, but the plaintiff must show their claim is meritious and they lack the financial means to be able to post security.
Take-aways
The key takeaways for survivors abused in Ontario but living outside of Ontario who are considering bringing a civil lawsuit in Ontario can be summarized as follows:
Defendants are entitled to ask the court to order you to pay security for costs if you start a lawsuit in a province other than the one you live in, but the court may refuse to grant the defendant’s request if you are unable to pay money into court because of financial constraints.
The courts and lawmakers have acknowledged the importance of removing barriers, such as security for costs orders, that prevent survivors from seeking justice and compensation for the harms they suffered as a result of being sexually abused.
If your perpetrator has been criminally convicted, the Victims’ Bill of Rights provides judges with a compelling basis to decline order to you to post security for costs in a civil claim for compensation.
Costs are one of many considerations for survivors contemplating out-of-province civil litigation that warrants further discussion with a lawyer with knowledge and experience in the sexual abuse area.
Contact Lauren Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
Sexual Abuse Survivors Beware — The Defamation Risk
Elizabeth Grace examines causation in relation to damages — a cornerstone of civil claims for sexual abuse and violence.
This article was originally published in November 2017
Two adult sisters accuse their uncle of sexually assaulting them as young children through spoken words and emails sent to family members. The uncle successfully sues them for defamation. The sisters are ordered to pay him $125,000 in damages plus his legal costs. (Vanderkooy v. Vanderkooy, 2013 ONSC 4796)
An adult sister sues her brother for childhood sexual and physical abuse and he counter-sues her for defamation based on emails, letters and postcards she sent to family members, lawyers and a former high school friend about his alleged abuse. The sister is unsuccessful with her lawsuit and although she satisfies the court that her statements to family members and lawyers were defensible, she fails to do so in relation to her communication with her former friend. She is ordered to pay her brother $5,000 in damages for defamation plus his legal costs. (Whitfield v. Whitfield, 2016 ONCA 581)
An adult woman alleges she was sexually assaulted by a man she had previously dated. The man was charged criminally, but the Crown withdrew the charge. The man then successfully sues the woman for defamation. She is ordered to pay him $5,000 as damages and $18,800 to cover his legal costs for defending himself in the criminal proceeding. (Haight v. R.B., 2017 ONSC 5359)
These are three recent examples of cases where Ontario courts have ruled in favour of individuals who claim they had been defamed by unproven allegations of sexual assault. In this Internet age, more than ever, it is critical that survivors of sexual abuse, and the family members and friends who support them, be extremely careful about how, to whom and in what forum they disseminate information that accuses someone of sexual assault. These are understandably very serious allegations that can and do destroy lives (on both sides). A counter-strategy of those who have been so accused — whether or not they actually committed sexual assault — can be to take the offensive and sue their accusers for defamation, thereby putting their alleged victims on the defensive.
Here, I provide some background and basic information on steps survivors of sexual abuse (and those who support them) can take to help protect themselves against successful defamation lawsuits.
Background
Many individuals who have been sexually abused feel great shame and keep their abuse a secret, telling no one. Others tell those close to them what happened, and still others speak and/or write widely about their experiences of abuse. Written disclosures can take many forms beyond letters, and include emails, Facebook, Twitter and other social media postings, and reader comment sections on the Internet. Some may even post online videos in which they talk about their experiences.
There are many motivations for speaking about sexual abuse. These include protecting others who are believed to be directly at risk of also being hurt by the same perpetrator, or more generally warning those at risk of exploitation and violation in similar circumstances.
Sometimes the motivation for disclosure is more self-focused to seek out help and support, such as when one tells a spouse, a parent or a health care provider. Other times, the impetus for speaking out is to rid oneself of the shame, self-blame and secrecy that previously shrouded the abuse, and to reclaim a sense of autonomy and empowerment. The intent may also be to strike back at, shame and isolate the perpetrator — in other words, “hurt” him or her back.
Whatever the motivation or motivations and whomever the audience, there is always risk when one communicates experiences of sexual abuse to third parties. A defamation lawsuit, whether well-founded or not, is a real danger. Suddenly, the person believing she or he was the one wronged is accused of being the wrongdoer. The tables are turned, and the person claiming to be the victim is put on the defensive with all of the emotional and financial costs associated with responding to a defamation suit.
Remember, anyone can start a lawsuit. Whether or not a court will ultimately validate the claims made in a defamation lawsuit will depend on an application of the legal principles summarized below to the particular facts of a case.
Key Legal Principles
An accusation of sexual assault against someone is by its very nature “defamatory.” It hurts the reputation of the person accused and risks seriously lowering him or her in the eyes of others, regardless of whether or not the allegation is true. The defamatory statement is presumed in law to be false, putting the onus on the person(s) who made the statement to marshal the evidence and legal arguments necessary to justify or excuse the statements.
It is important to appreciate that it is not only the person who first made and circulated the defamatory statement that is at risk of being sued for defamation, but also others who repeat or republish the statement by, for example, verbally telling or forwarding an electronic communication, such as an email, to others.
It is therefore essential that family members and friends who may be feeling intense anger, upset and/or betrayal that a loved one has been hurt and want to demonstrate their support, understand that by more widely disseminating the allegations, they become directly responsible for their actions and are not shielded by the fact that the allegations originated with someone else.
(a) The Defence of Truth
While “truth,” which is also known as the “defence of justification,” is a complete defence to a claim for defamation, the onus of proving the truth of the defamatory statement lies on the person who made the statement. This means she or he must establish that what they said happened, did happen. The legal standard of proof that must be satisfied is: proof on a balance of probabilities. This means the person who made the statement claiming sexual abuse must be able to satisfy a judge or jury that it is more likely than not that the sexual abuse actually occurred.
Satisfying this legal standard of proof is not easy. There are rarely witnesses to a sexual assault, meaning it is usually one person’s word against another’s, the victim is often in a vulnerable state by virtue of age or other power imbalance, and the trauma of the events can contribute to incomplete or vague memories of what happened.
When a claimed sexual assault is committed by one adult against another, arguments of consent, if not outright denial, will often be made and can throw into question the reliability and truthfulness of the alleged victim’s account of what happened.
The effect of factors like these, especially when combined, can be sufficient to defeat the defence of “truth” to a defamation claim, causing the alleged victim of sexual abuse to have recourse to other available defences.
It is important to appreciate, however, that not every detail that forms part of a defamatory statement has to be proven true. Minor inaccuracies will not defeat the defence of justification. But the defamatory statements must be shown to be substantially correct – i.e., the core of what has been alleged, or what has been described as the “sting” of each defamatory statement, must be justified – i.e., proven true.
(b) The Defense of Privilege
Another defence to a defamation suit is “privilege.” Privilege refers not to the statement itself, but rather to the occasion on which the statement was made. Specifically, the law recognizes that there are protected occasions when one can say damaging and even false things about another person without the repercussion of a successful lawsuit for defamation. This is because, as a society, we put a premium on free and open communication and sharing of information in certain circumstances.
There are two kinds of privilege defences available to those who make allegedly defamatory statements that may defeat defamation lawsuits: “absolute” and “qualified” privilege.
Absolute Privilege:
Where it applies, absolute privilege provides a victim of sexual abuse with a clear and unambiguous defence that operates something like an absolute immunity. Unlike qualified privilege, it cannot be defeated or lost because the statement was made with malice or an intent to hurt. However, the circumstances in which this powerful defence applies are limited. For example, it applies to statements made in the course of legal proceedings. Judges, lawyers and witnesses who testify about being sexually abused are protected from defamation claims by absolute privilege. To illustrate, this means statements made in court, including court documents like the Statement of Claim by which a sexual abuse plaintiff starts a lawsuit, are protected by absolute privilege.
Qualified Privilege:
Although it applies to a broader range of occasions, qualified privilege is less clear-cut and more dependent on the specific circumstances surrounding a defamatory statement. It is more akin to a limited immunity. Context is all-important.
To avail oneself of the defence of qualified privilege, the person who made the defamatory statement must be able to show, based on objective standards (i.e., what a reasonable person would accept, and not her own personal standards), that she had an interest or duty to make the statement and that the person to whom she made the statement had a corresponding duty or interest to receive or hear it. This is referred to as “reciprocity of duty and interest between publisher and publishee.”
Examples of when a survivor of sexual abuse has been found to have a legitimate interest in communicating information about her alleged abuser’s misconduct include when she was trying to protect or advance her own interests (i.e., obtain emotional or therapeutic support), or was seeking to protect or advance the interests of others (i.e., prevent abuse of others).
The defence of qualified privilege and whether or not it will apply has attracted a lot of attention by our courts, with variable results. Communications to parents and health care providers, such as therapists, have been found by courts to be protected by qualified privilege. Communications beyond this narrow circle, such as to more extended family members, close friends and co-workers have not always been so protected. In short, the wider the circle of communication, the greater the risk of being sued successfully for defamation.
Even where the defence of qualified privilege would otherwise apply, it can still be defeated if it is shown that the person making the defamatory statement was motivated by malice when making the statement. Malice is something the defamed person must prove in order to defeat a qualified privilege defence. This is because the law presumes, unless it is proven otherwise, that when qualified privilege attaches, the defamatory statements were made in good faith. It is therefore for the person who says he was defamed to establish it was otherwise.
Minimizing Risk — Points for Survivors of Sexual Abuse to Bear in Mind
1. Speak with a lawyer for legal advice about your options and obligations as early as possible. There is no risk associated with speaking to a lawyer who is retained to provide advice.
2. Speak with a health care professional for treatment and/or therapeutic support purposes. This person should have his or her own professional confidentiality obligations. Communications of this nature will generally be protected under the defence of qualified privilege.
3. After obtaining legal advice and seeking professional health care assistance, make a considered decision about whom else, if anyone, to tell. Generally, it is best if you tell only those you are closest to and who are best able to support you (such as an immediate family member) and/or those you believe are most directly able to prevent others from being hurt, if that is a concern.
4. If you feel you must communicate to non-professionals, then limit your communications to only what you need to convey and to what those receiving your communications really need to know. As the courts have said, “communicate appropriate information to appropriate people.” This will increase the chances of a successful defence to a defamation suit.
5. If it is not necessary to identify the abuser by name or description sufficient for his or her identification, then do not do so. For example, if the main purpose of your communication is to speak about your feelings or the impact on you of the abuse, consider if it is really necessary for you to name or otherwise identify the person who hurt you.
6. Avoid using electronic forms of communication, such as email or social media, when communicating about these sensitive matters, as these are forms of communication over which you can quickly lose control and that are long-lasting.
7. Warn non-professionals whom you tell, such as family members, not to tell others, or at least to be very careful about what they say and to whom, as this will help protect not only you but also them from a successful defamation suit.
Contact ELIZABETH Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
Our Response To A Recent Statement Issued To Parents By The CDSBEO
Lerner LLP’s sexual abuse team is currently representing a survivor in a claim against a teacher based on abuse that occurred when our client was a student at St John Catholic School in Perth.
The Catholic District School Board of Eastern Ontario (CDSBEO) recently issued a statement to parents. The statement relates to an historic incident of sexual abuse involving a student, by a former occasional teacher named Edward (Ted) Michael Oliver who was employed by the board at St John Catholic High School in Perth Ontario, in 2006.
Our sexual abuse team is currently representing a survivor in a claim against this teacher based on abuse that occurred when our client was a student at St John Catholic School in Perth.
We are also representing other survivors of historic sexual abuse who were former students of St John Catholic High School in Perth. This includes a survivor of sexual abuse by history teacher Jeffrey (Jeff) L. Peters, who was criminally convicted for his misconduct against her.
Recently, the media reported on a third teacher, David Alexander Giroux, also from St John Catholic High School in Perth, who has been charged with sexual offences involving a minor.
If you, or someone close to you, has been sexually assaulted or abused, and would like to know about available legal options, please call us or email us for a free, completely confidential consultation.
We specialize in guiding survivors through the legal process with respect, sensitivity, and compassion, and work to fearlessly pursue the vindication, accountability, and closure survivors deserve.
Contact ELIZABETH Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
The Anatomy Of The Tort Of Family Violence – A Promising Development For Survivors Of Sexual Violence
This tort has the potential to further access to justice for diverse communities.
Earlier this year, in Ahluwalia v Ahluwalia 2022 ONSC 1303, Justice Renu Mandhane of the Ontario Superior Court of Justice gave life to the tort of family violence, ordering a man to pay his former spouse $150,000 in damages for the abuse she experienced during their 16.5 year marriage. Her decision is now under appeal. Judges, lawyers, and many in justice-seeking groups concerned with intimate partner and gender-based violence are waiting to see how the Court of Appeal for Ontario responds to Justice Mandhane’s expansion of our common law to address a deep-seated societal problem.
Although created in the family law context, this tort provides survivors of sexual violence a new avenue of recourse in the civil justice system, where their abusers are family members. Arguably, the tort allows our legal system to begin to grapple with the complexity of sexual violence, as survivors are often also subject to multiple other forms of abuse simultaneously, including emotional, financial, and psychological abuse.
This tort has the potential to further access to justice for diverse communities. In particular, racialized immigrant women, who can be subjected to a myriad of abuse due to their intersecting identities, and who have limited support and resources to hold abusive family members accountable.
Factual Background
Ahluwalia arose from a family law dispute between a father, Amrit, and a mother, Kuldeep. In addition to the property, child support, and spousal support issues, the mother sought “general, exemplary and punitive damages for the physical and mental abuse suffered by [mother] at the hands of the [father]”.[1]
The couple met in Chandigarh, India, in 1999 and married shortly thereafter. They remained married until July 2016, at which point they separated.
While in India, the couple lived in a joint family home. Their relationship was defined along gendered lines, which meant – like many South Asian families – the mother was responsible for the caregiving, and the father was responsible for earning money outside the home. In the early years of their marriage, the focus was on starting a family.[2]
In 2000, the father suggested that the family immigrate to Canada to pursue better opportunities. By March 2002, the father, mother, and their first child had arrived in Canada. As newcomers for whom accreditation was costly and timely, they were required to work full-time in a factory to make ends meet.
Over the course of their marriage, the father was mentally, emotionally, and psychologically abusive. He was financially controlling and extremely aggressive in response to the mother’s efforts to gain independence.[3] The father would require her to seek permission to leave the home, and when the couple hosted dinner parties, she was required to remain in the kitchen.
The father was also physically abusive towards the mother. He would become jealous when she received attention from other men and would engage in severe physical abuse. These episodes of physical abuse were followed by periods of silent treatment, ending only after the mother complied with demands for sexual intercourse.[4]
In sum, the father was prone to angry outbursts when intoxicated and would meet challenges to his authority with physical violence. This violence was condoned by members of his family.[5] Notably, in September 2021, the father was charged criminally with two counts of assault against the mother and one count of uttering threats to cause death, both of which related to events during the marriage.[6]
The Anatomy of the Tort of Family Violence
In assessing the mother’s claim for damages, Justice Mandhane noted it was imperative to properly understand the relevant factual context in the 16-year pattern of emotional, mental, and psychological abuse. She explained that the “no-fault” nature of family law must give way to serious allegations of family violence that create “independent, and actionable harms that cannot be compensated through an award of spousal support”[7] and proceeded to recognize the tort of family violence.
In creating the tort, Justice Mandhane stated, “[w]hile trial judges must be cautious about developing new foundations for liability, there is scope to do so where the interests are worthy of protection, and the development is necessary to stay abreast of social change.”[8]
In her view, this was such a case. She explained that recognizing this tort is consistent with the compensatory goal of tort law, and imperative to remove economic barriers that survivors face when trying to leave violent relationships and access justice.
In her view, “existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness.”[9]
Justice Mandhane characterized the test as follows: a plaintiff must establish conduct by a family member towards the plaintiff, within the context of a family relationship, that:
is violent or threatening; or
constitutes a pattern of coercive or controlling behaviour; or
causes the plaintiff to fear for their own safety.[10]
In order to satisfy the test, the plaintiff must show that the defendant acted with an awareness of their actions (i.e., was deliberate, intentional, or calculated).
Furthermore, for the tort to be made out, the plaintiff will have to plead and prove on a balance of probabilities that a family member engaged in a pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property.[11]
Once liability is proven, the nature of the family violence, including the circumstances, extent, duration, and specific harm, will all be factors relevant to assessing damages. Aggravated damages may be awarded for betrayal of trust, breach of fiduciary duty, and relevant post-incident conduct. Punitive damage awards will generally be appropriate given the social harm associated with family violence.[12]
In this case, Justice Mandhane awarded a total of $150,000 under three heads of damages: $50,000 in compensatory damages related to the mother’s ongoing mental health disabilities and lost earning potential, an additional $50,000 in aggravated damages for the overall pattern of coercion and control and the clear breach of trust, and $50,000 in punitive damages due to the father’s prolonged and abusive conduct which required strong condemnation.[13]
Why is this Important?
It remains to be seen what the Court of Appeal and other trial courts will do with the tort of family violence. While the tort has not yet been considered in any other reported court decision, it is a step towards better understanding the complexity and multifaceted nature of sexual violence, particularly when the perpetrator is a family member.
A majority of survivors of sexual violence are abused by someone they know.[14] Children who experience sexual violence know their perpetrators 90% of the time, and over half of these perpetrators are family members.[15] Given their proximity, family members who commit sexual violence often engage in a pattern of coercive and controlling behaviour, which can be either subtle or explicit, forcing the survivor into dependency.
This leads survivors of sexual violence to comply with the demands of their abusers out of fear for their safety (i.e., physical harm, risk of homelessness, and/or losing contact with loved ones). It is the nature of this coercion and dependency that is not adequately captured by other torts.
Unlike existing torts that focus on harmful incidents, the tort of family violence focuses on long-term patterns of conduct intended to control or terrorize survivors. [16] These existing torts, including assault and battery and the intentional infliction of mental suffering, do not fully capture the cumulative harm that results from such conduct as their focus is on specific and individualized incidents. Thus, while there is overlap with existing torts – a point which Justice Mandhane acknowledged – there are unique elements that have justified the recognition of a new tort.
The tort of family violence provides survivors, their counsel, and the courts with a new tool to express the profoundly calculated and deliberate nature of abuse, and hold perpetrators accountable. It has the potential to recognize that sexual violence and abuse is not an isolated incident and is deeply linked to various other forms of abuse and harm.
Perhaps what is most powerful about the tort of family violence is its potential to recognize and implement intersectionality within our analysis and understanding of abuse. Justice Mandhane’s reasoning in Ahluwalia speaks to the experience of many racialized immigrant women, who simply cannot report the abuse they face due to economic dependency, the presence of children or elders who are dependent on them, the fear of retaliation from community members, as well as the lack of social and financial support.
For many racialized and immigrant groups, discussion surrounding abuse is taboo. Often, when racialized immigrant women share their experiences of sexual abuse with others, they are told to remain in contact with their abusers in the name of keeping family members together and avoiding bringing shame to their family or community. For many, as in Ahluwalia, the motto is “stay quiet, stay happy.” This allows family members who are abusive to continue perpetrating their abuse with no accountability.
Recognition of this new tort provides survivors who are in cyclical patterns of abuse with a remedy that not only sees, hears, and understands them, but also compensates them fairly for the harms they experience.
It is a promising legal development for survivors of sexual violence, and one that our courts should continue to recognize. Ultimately, it is only as our civil justice system develops the tools to understand the complexity of sexual violence that it will be able to better protect survivors and hold perpetrators accountable – and the tort of family violence is a step in the right direction.
[1] Ahluwalia v Ahluwalia 2022 ONSC 1303 at para 27.
[2] Ibid, at para 7-8.
[3] Ibid, at para 108.
[4] Ibid, at para 106.
[5] Ibid, at para 99.
[6] Ibid, at para 19.
[7] Ibid, at para 46.
[8] Ibid, at para 50.
[9] Ibid, at para 47, 54.
[10] Ibid, at para 52.
[11] Ibid, at para 55.
[12] Ibid, at para 57.
[13] Ibid, at paras 114, 119-120.
[14] Adam Cotter and Laura Savage, Statistics Canada, 2019.
[15] Finkelhor, D. (2012). Characteristics of crimes against juveniles. Durham, NH: Crimes against Children Research Center; Whealin, J. (2007-05-22). “Child Sexual Abuse”. National Center for Post Traumatic Stress Disorder, US Department of Veterans Affairs.
[16] Ibid, at para 54.
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In The Hot Seat: Non-Disclosure Agreements In Cases Of Sexual Violence
On November 4, 2021 Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in Prince Edward Island’s provincial legislature.
On November 4, 2021 Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in Prince Edward Island’s provincial legislature. This is a bold step that I expect will be followed in other parts of Canada.
The proposed PEI legislation restricts the use and content of non-disclosure agreements (“NDAs”) in cases of sexual harassment and discrimination in all out-of-court settlements where the survivor does not want it.[1] If passed, this legislation would be the very first time that a non-disclosure agreement is subject to any kind of regulation in Canada.
Background and Context
Confidentiality clauses or NDAs in out-of-court settlements in cases of sexual violence – which includes sexual abuse, assault, and/or harassment – have been hotly contested for decades. They have long been used to “gag” and silence survivors of sexual violence, conceal wrongful conduct of perpetrators, and protect powerful individuals and entities, including employers and religious institutions.
In the era of #MeToo and the Harvey Weinstein scandal, NDAs have become particularly notorious, and the criticism of these silencing tools has become far more widespread.
In response to the media scrutiny and exposure of NDAs, legislators have been pressured to take concrete action. Many jurisdictions, primarily in the United States, have moved to restrict or prohibit the secrecy NDAs force upon survivors, primarily in the employment context.
The legislation proposed by Ms. Lund is the first of its kind in Canada. It is modelled on Ireland’s draft Employment Equality (Amendment) (Non-Disclosure Agreements) Bill expected to go into second reading in early 2022.[2] While there are few details available, a similar bill is expected to be introduced by Senator Marilou McPhedran at the federal level.
Other jurisdictions, including the United Kingdom and Australia, are also considering legislation that restricts the use and content of NDAs.
The potential for such legislative reform at both the provincial and federal level in Canada, suggests a renewed commitment to prohibiting the use of NDAs in cases of sexual abuse. With NDAs back in the hot seat, one must ask: how far will this effort go?
Taking a Step Back: What’s Wrong with NDAs?
It is well-known that a majority of civil actions, including cases of sexual abuse and sexual harassment, end in a private settlement between the parties, and not in a public court setting. While a carefully drafted non-disclosure agreement has the potential of serving all parties involved, they often perpetuate harmful conduct against survivors of sexual violence.
Specifically, NDAs that prevent survivors from sharing their experiences of sexual violence can interfere with a survivor’s healing process, and impact how they are able to move forward.
Healing is not a linear process and strategies used may be unique to each survivor. Some survivors may choose to share their stories immediately; others may not be prepared to share until later in life, if at all. However, a restrictive NDA signed years prior may eliminate such an opportunity. Although some NDAs may carve out exceptions and specify who a survivor can discuss their experiences with, such as a partner, immediate family, and/or medical professional(s), this may not be enough. The restriction on who they can say what to – or, in other words, their freedom of expression – can perpetuate the harms they suffered as a result of the abuse and, in many cases, can also leave survivors with the feeling that justice has not been served.
In effect, then, the continued presence of such broad NDAs protects the reputation of perpetrators, employers, and/or organizations, rather than survivors of sexual violence themselves.
This highlights a bigger problem:
Many survivors of sexual violence do not come forward due to feelings of shame, guilt, and a fear for their safety or reputation. Often, this is rooted in well-known historical and contemporary stereotypes and myths about sexual violence.
The ability of survivors who have taken action against perpetrators to speak about and share their experiences can encourage others to come forward and take action. However, if survivors of sexual violence who have already come forward are forced into silence through NDAs, other survivors may not come forward with their experiences as they may be unaware of the extent and prevalence of sexual violence and lack the necessary support and resources.
This allows perpetrators to continue their abuse and harassment, thereby limiting accountability and, ultimately, change.
Recognizing that NDAs, initially created to protect trade secrets and proprietary corporate information, have been weaponized against survivors of sexual violence to impose secrecy and silence them means that it is time that our law-makers intervene by restricting the use and content of NDAs through legislation.
Creating Change: Legislation Restricting the Use of NDAs
Many jurisdictions in the United States moved to enact legislation restricting the use and content of NDAs following the #MeToo movement. As noted, nearly all of the jurisdictions that have passed or introduced such legislation have done so in the employment context. The exception is California, and most recently, PEI.
In 2018, California passed the Stand Together Against Non-Disclosures Act (“STAND Act”), which amended California’s Code of Civil Procedure to prohibit a settlement agreement from preventing the disclosure of factual information related to specific “acts” in certain civil or administrative claims in the context of sexual harassment, sexual assault, and sex discrimination.[3] This was expanded on October 7, 2021, as Governor Gavin Newsom signed the Silenced No More Act into law.[4] The Silenced No More Act builds on the STAND Act by expanding anti-NDA protections to apply to all forms of harassment, discrimination, and retaliation in the employment context, rather than only sexual harassment, sexual assault, and sex discrimination.
The Non-Disclosure Agreements Act proposed in PEI would prohibit the use of NDAs in cases where sexual harassment or discrimination has occurred or been alleged to have occurred, and where the NDA has the “purpose or effect of concealing the details relating to a complaint of discrimination or harassment”, where such an agreement is not the preference of the victim.[5]
The proposed legislation would also:
Establish the permitted and required content of a non-disclosure agreement;
Protect and support survivors who, in relation to an incident of sexual harassment or misconduct, make disclosure to law enforcement authorities, regulated health and care professions, legal professions, or close contacts; and
Create penalties for those who do not comply with the legislation.
Some jurisdictions in the United States which have passed legislation regulating NDAs, including New York State, New Jersey, and Maryland, have distinguished between confidentiality of the fact and terms of settlement, and the underlying allegations.
Ms. Lund’s proposed legislation does not explicitly make such a distinction. However, the legislation does provide that “nothing in this section prohibits the inclusion or enforcement of a provision in a settlement agreement that precludes the disclosure of the amount paid in the settlement of a claim”,[6] suggesting that it is possible for settlement amounts paid as part of an agreement to remain confidential.
Ultimately, it remains to be seen how the Green Party’s proposed legislation will be received on the floor, and whether it or some variation of it will pass into law.
Balancing Interests: How Far Will These Efforts Go?
As noted, with the exception of California and PEI, most jurisdictions that have enacted or introduced legislation restricting the use and content of NDAs have focused exclusively on the employment context. This may be for various reasons, including the fact that the widespread scrutiny of NDAs arose out of employment-related scandals and, therefore, NDAs are thought to be more frequent in employment-related contexts. It may also be because regulating the use and content of NDAs beyond the employment context may be considered “too far” for stakeholders and lawmakers.
Nevertheless, expanding this protective legislation beyond the employment context is imperative. Regardless of the context in which they appear, NDAs can be and are often used to unfairly silence survivors. Although it is reassuring that Ms. Lund’s proposed legislation applies beyond the employment context, whether or not it will ultimately be passed, let alone with such broad application, remains to be seen.
Simultaneously, it is important recognize that settlement of a dispute is generally a positive outcome and it takes two, or more, to settle. Defendants in court cases and, equally, potential defendants who want to avoid being named in a civil lawsuit, need to continue to see a benefit in settling.
One way to ensure that they continue to see settlement as an attractive option is for legislation to distinguish between the fact and terms of settlement, versus the underlying allegations. Some jurisdictions in the United States have recognized this distinction in their statutes, and allowed confidentiality over the fact and terms of settlement.
Doing this may balance competing interests by protecting the right of survivors to share their experiences, while also ensuring that defendants and potential defendants have a sense of finality and closure. Without this, many may choose litigation through the court system and all the risks and expense it entails over settlement.
Ultimately, whether or not the enactment of restrictive legislation will go far enough in protecting survivors of sexual violence who want to settle out of court remains to be seen.
However, I believe it is a step in the right direction, as such legislation will help protect survivors and hold those who perpetrated and enabled the violence against them accountable. It will also encourage survivors to share their stories, foster public dialogue and education, and by doing so, hopefully reduce the prevalence of sexual violence in society.
[1] Bill No. 118, Non-Disclosure Agreements Act, 2nd Sess, 66 Leg, Prince Edward Island, 2021 [“Bill 118”].
[2] Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 (Ireland).
[3] Code of Civil Procedure, Chapter 3.5. Confidential Settlement Agreements, § 1001 (California).
[4] Senate Bill No. 331, Chapter 683: An Act to Amend Section 1001 of the Code of Civil Procedure, and to amend Section 12964.5 of the Government Code, relating to civil actions (California).
[5] Bill 118, s. 4(1).
[6] Bill 118, s. 4(10).
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Criminal Publication Bans And Your Civil Lawsuit: What You Need To Know
There is much reform needed when it comes to criminal publication bans.
Recently, a sexual assault survivor was charged with, and pleaded guilty to, breaking a publication ban protecting her own identity. The ban had been ordered in a criminal proceeding against the survivor’s ex-husband, who was convicted of sexually assaulting her. Such a ban, ordered based on section 486.4 of the Criminal Code, prohibits the sharing of any information that could identify a complainant in a criminal proceeding.
Following the conviction of her ex-husband, the survivor shared a transcript of the judge’s reasons for conviction with friends and family, which was then reportedly passed on to a friend of the guilty party. When the ex-husband learned about this, he contacted the police, and the survivor was charged criminally for breaking the ban. She pleaded guilty, and was fined $2000 and ordered to pay a $600 victim surcharge fee.
After outrage from women’s advocates over this unjust result and national media coverage, the survivor obtained a new lawyer and appealed the conviction. The Crown conceded the appeal, based on an apparent legal technicality (the guilty plea was entered under the wrong section of the Criminal Code), and the survivor’s conviction was overturned. While this case eventually saw justice done, the revictimization of the complainant by the guilty ex-husband, by the Crown, and arguably also by the court that convicted her cannot be undone.
There is much reform needed when it comes to criminal publication bans. These bans are routinely requested by Crown attorneys and ordered by courts in cases involving sexual violence, often without any input from or explanation to survivors. While intended to protect their identity and promote reporting, these bans can be paternalistic and result in the unintended silencing of survivors. It is imperative that complainants are afforded some choice when it comes to sharing their identity, that their input on this be sought both at the outset and conclusion of a criminal proceeding (because they may change their mind), and that they have access to a straightforward and cost-free process to have a ban lifted should they request it.
It needs to be borne in mind here: a criminal case involves the state (Crown) against a person accused of a crime. The complainant (alleged victim of the crime or survivor) is not a party to the criminal proceeding. They are mere witnesses with no control over that proceeding. They give up their privacy, time, emotional resources and often their personal property (such as phone or computer), and more, to assist the criminal process and our society make those who have committed crimes accountable. The publication ban process is in urgent need of reform so it does not impose even greater burdens on survivors.
Publication bans do not just impact a survivor’s ability to share their story with those closest to them, these bans can also impact their ability to share their identity in a related civil lawsuit. The Ontario Superior Court recently confirmed in H.A. v S.M. that naming a plaintiff in civil pleadings where a criminal publication ban has already been ordered risks violating the ban.
For those who want to remain anonymous in their civil lawsuit (i.e. using initials or a pseudonym), a criminal publication ban can actually be of great benefit, potentially removing the usual hurdles to getting an anonymity order (see my colleague Ashley Boyes’ discussion of civil anonymity orders here). For example, and similar to the case of H.A. v. S.M., in United Kingdom of Great Britain and Northern Ireland (Attorney General) v L.A., the Nova Scotia Court of Appeal held that a related criminal publication ban continued to apply in the civil proceeding, overturning an anonymity order by the lower court on the basis that it was duplicative of the criminal ban. In both these civil cases, the plaintiffs were ordered to be identified by their initials as a direct result of the existing criminal publication bans.
While this is good news to some, for others it has the potential to derail or complicate their need to be heard and not further silenced. For those who want to use their name in a civil lawsuit where a ban is already in place, they may have to apply to the court to have the ban lifted. This can add unnecessary complexity and cost to a civil case, and delay justice and compensation for a survivor.
If you are a survivor of sexual violence and a complainant in a criminal proceeding, it is important to consider the implications of a publication ban, including on any potential future civil claim you may wish to bring. Speak with a lawyer for legal advice as early as possible.
Finally, lawyers assisting survivors with civil lawsuits must be alive to the real risks of naming a client in a pleading where there is a related criminal publication ban. The charges laid against the survivor in the case referenced above should serve as a wake up call: until the law and practices around such bans are reformed, breaches of criminal publication bans, even if inadvertent, can lead to stiff penalties and even criminal conviction.
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So You Won The Trial? Now It's Time To Enforce Judgment
Carly Moore helps you to learn about strategies to enforce judgments in sexual abuse cases. Discover how survivors can hold wrongdoers accountable even after winning their cases in court.
After years of litigation and stress, you finally get your day in court and a decision is made in your favour. But is this really success if you can’t collect against the wrongdoer?
In civil claims against perpetrators of sexual violence, success for a survivor usually includes being financially compensated for the harms done.
However, individual defendants may try to evade judgment through unlawful conveyances of property, asset transfers, or even filing for bankruptcy, making enforcement difficult for the successful plaintiff.
Collecting on a judgment debt can require a variety of creative tactics to be deployed by a plaintiff’s lawyer, including examinations in aid of execution, writs of seizure and sale or possession, garnishment, or moving to set aside a fraudulent conveyance.
It’s important for plaintiff and defence lawyers to be aware of the provisions of the Bankruptcy and Insolvency Act, which ensure a bankrupt cannot escape a judgment for sexual assault. In urgent situations, interim relief, such as a Mareva injunction (an order preventing a defendant from disposing of their assets to deprive a successful plaintiff of compensation) should also be considered.
This was recently the case in C.A.O. v. Williamson, 2020 ONSC 6793, whereby my colleague Elizabeth Grace and I successfully stopped a defendant’s unlawful dissipation of an asset in the face of a judgment against him for punitive damages.
In June 2020, Justice Salmers granted judgment in favour of the plaintiff against her former music teacher/band leader, Royce Williamson, for historical sexual assaults: C.O. v. Williamson, 2020 ONSC 3874. As a result, the plaintiff was entitled to recover damages against not only the school board but also Williamson.
In October 2020, as a result of steps taken by us to enforce the judgment debt against Williamson, Williamson’s lawyer advised that Williamson planned to dissipate his only known asset, an RRSP. In response, we moved quickly and on an ex parte basis (i.e., without prior notice to Williamson) for an interim interlocutory order in the form of a Mareva injunction to restrain Williamson from disposing of his RRSP.
Justice Edwards granted the emergency order, finding that it was “beyond controversy that Williamson would have collapsed his RRSP and placed those funds beyond the reach of the Plaintiff and the court.” Justice Edwards also fixed costs of the motion against Williamson in the amount of $1000.
In coming to his decision, Justice Edwards laid out the well-known requirements to succeed on such a motion, which, paraphrased, require a plaintiff to:
disclose all information relevant to a court’s ruling;
provide sufficient detail about her claim, the basis for it, and any arguments made against it by the defendant;
provide some proof that there is a risk of the assets in question being removed from the jurisdiction or dissipated;
undertake (i.e., promise) to pay for any harm caused by the injunction if it turns out to have been unjustified; and
provide some proof that the defendant has the assets in question and they are in the court’s jurisdiction
Importantly, Justice Edwards did away with the requirement for the Plaintiff to give an undertaking to pay Williamson damages, relying on the Ontario Court of Appeal’s decision in Business Development Bank of Canada v. Aventura II Properties Inc., and on the unchallenged findings and judgment of Justice Salmers against Williamson. This means an undertaking will not always be required when the moving party has a judgment in their favour.
Justice Edwards emphasized that “it would be grossly unfair to require a victim of sexual assault to provide an undertaking in damages where that Plaintiff has been entirely successful with her claim for damages.”
This decision by Justice Edwards lends support to winning plaintiffs (and also co-defendants with successful crossclaims) who choose to pursue a losing defendant who is not honouring a court award against them for damages arising out of sexual abuse.
In the right circumstances, a Mareva injunction can be an important tool used in aid of execution, to hold a perpetrator of sexual violence accountable, and to ensure justice for survivors.
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Vicarious Liability: Church Responsible For Sexual Abuse Of Children By Non-Employees Installed To Oversee Orphanage
The Newfoundland and Labrador Court of Appeal has further clarified the test for vicarious liability in circumstances where a conventional employment relationship does not exist between a wrongdoer and its principal.
In John Doe (G.E.B. #25) V. The Roman Catholic Episcopal Corporation Of St. John’s, 2020 NLCA 27, the Newfoundland and Labrador Court of Appeal has further clarified the test for vicarious liability in circumstances where a conventional employment relationship does not exist between a wrongdoer and its principal.
Briefly, the wrongdoer does not have to be an employee in the traditional sense: the total relationship of the parties is relevant to whether liability will be established. What is key to establishing vicarious liability is whether the principal was in a position to manage the risk posed by the conduct of the wrongdoer.
In this case, four boys living at Mount Cashel orphanage in St. John’s in the 1950s were sexually abused by five members of the Christian Brothers Institute Inc. (the “Brothers”). The Brothers were an organization tasked by the Roman Catholic Episcopal Corporation of St. John’s (the “Archdiocese”) with establishing and overseeing the orphanage. The orphanage was on property that was conveyed from a Bishop of the Archdiocese to the Brothers, in trust, for the express purpose of establishing an industrial home and orphanage. The conveyance provided that the property would revert to the Archdiocese if it ceased to be used for this purpose.
Operational funding for the orphanage came from several sources, including the Archdiocese. In 1999, the four boys claimed against the Archdiocese and the Brothers for damages resulting from the sexual abuse they suffered while living at the orphanage. The plaintiffs alleged that the Archdiocese was vicariously liable for the sexual abuse perpetrated by the Brothers as a result of the close relationship between the two organizations. The Archdiocese did not dispute that the sexual abuse had occurred. Instead, it argued that it was not vicariously liable for the actions of the Brothers.
In March 2018, Faour J. for the Supreme Court of Newfoundland and Labrador dismissed the plaintiffs’ claims against the Archdiocese because of a lack of evidence that there was a sufficiently close relationship between the Archdiocese and the Brothers to support a finding of vicarious liability. The plaintiffs appealed. The Court of Appeal of Newfoundland and Labrador, allowing the plaintiffs appeal, sets aside the trial judge’s decision, and determines that the Archdiocese is vicariously liable for the Brothers’ abuse.
The Court finds that the trial judge erred in his characterization of the doctrine of vicarious liability, particularly by limiting the doctrine to issues such as employment and control of day-to-day operations. By doing so, the trial judge misapplied the law to the facts at hand. The Court emphasizes the importance of considering all of the evidence, taken together, when determining whether vicarious liability is met in a case, and states that in this case, the trial judge failed to do so.
The Court lays out the well-established approach for determining whether a party is vicariously liable for the acts of a wrongdoer. First, a court must determine if any precedents conclusively decide the case. If so, the analysis ends. If no precedent exists, then a court must answer the following questions:
does a sufficiently close relationship exist between the wrongdoer and the principal as to make a claim for vicarious liability appropriate?
is the wrongful act of the wrongdoer sufficiently related to the conduct authorized by the principal to justify the imposition of vicarious liability?
If the answer to both is yes, then vicariously liability shall be imposed upon the principal.
When assessing the closeness of the relationship between the wrongdoer and the principal, the Court emphasizes that it is the total relationship between the parties that must be considered. A wrongdoer need not be an employee of the principal to impose vicarious liability on the principal. When assessing whether the wrongful act of the wrongdoer is sufficiently related to the conduct authorized by the principal, a court must consider whether the principal was in a position to manage the risk posed by the conduct of the wrongdoer.
In this case, the Court finds evidence to support the fact that the Archdiocese not only established the orphanage, but played an ongoing role in administering, servicing, operating, and financially supporting it. The Court is clear that the Archdiocese is not immunized from responsibility due to some internal structure of the Brothers – the “Archdiocese cannot simply install the Brothers and assign them work and then walk away, especially because the Archdiocese continued to exercise authority over the Brothers and take responsibility for the orphanage” (at para 90).
The Court makes clear in this case that an organization will be vicariously liable for the wrongful acts of a wrongdoer where a sufficiently close relationship exists between the wrongdoer and the organization and the wrongful acts are sufficiently related to the conduct authorized by the organization. It is not necessary that a wrongdoer be an employee of the organization in the traditional sense, but rather, it is the total relationship of the parties that will determine the proximity between the parties.
In the big picture, vicarious liability is a legal tool animated by twin policy objectives:
Fairly compensating victims; and
Deterring future harms.
It is applicable in cases where the principal has the power to shape the way the wrongdoer conducts its business or does their job. The power held by the principal, along with the control it may exert over the wrongdoer, is what underpins the fairness of allowing liability for behaviour the principal may not have known about and would not have approved.
By confirming that vicarious liability may be found outside the formal employment relationship, the Newfoundland and Labrador Court of Appeal speaks to the substance of this issue. Having found that the Archdiocese had the power to shape the way the Brothers operated the orphanage, the Court’s decision to impose vicarious liability supports the policy objectives of the vicarious liability doctrine.
The Archdiocese has applied to the Supreme Court of Canada for leave to appeal the Court’s decision.
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Sexual Abuse Cases: Who Pays The Legal Bills?
Elizabeth Grace explains that a sexual abuse plaintiff's legal costs associated with advancing his or her claim can be very significant, especially if the case goes all the way to trial.
A sexual abuse plaintiff's legal costs associated with advancing his or her claim can be very significant, especially if the case goes all the way to trial.
A recent decision of the Supreme Court of British Columbia (“B.C.”), Nixon v. Pickton, 2015 BCSC 1700, highlights the factors that a trial judge may consider in awarding, or refusing to award, costs to a successful plaintiff who has rejected an offer to settle from the defendant, but fails to “beat” that offer at trial.
This decision has attracted some media attention (see“Pickton not responsible for victim's full legal costs” on Findlaw.ca, and “B.C. judge says David Pickton sex-assault victim should have settled” in an article published in The Globe and Mail).
Normally, a successful party's legal costs must be paid by the party who loses at trial. However, to encourage parties to settle before trial, our rules of court include various incentives based on payment of legal costs – specifically, who is to pay, on what scale, and starting at what point in time.
In the B.C. case, David Pickton sexually assaulted the plaintiff in the early 1990s. He was convicted for the assault. Many years later, the plaintiff commenced a lawsuit against Pickton seeking approximately $1 million in damages. She alleged that amongst other injuries, the assault caused her pain and suffering and resulted in a loss of past and future earnings.
Six weeks before the trial was set to begin, Pickton offered to settle the lawsuit for $50,000. Approximately 90 minutes after the offer was made, the plaintiff's lawyer notified Pickton's lawyer that the offer was rejected. The case proceeded to trial before a jury.
The plaintiff faced a number of challenges at trial. The accuracy of her memory was attacked, as was her credibility. Pickton's lawyers argued that the many miseries the plaintiff had suffered in her life called into question whether the assault by Pickton had caused her injuries. The judge agreed, concluding at paragraph 11 of his ruling on costs that “Ms. Nixon appeared to me as a witness who was not dishonest, but as a witness whose memory, and therefore credibility, were ravaged by the exceptionally difficult life she has faced. Frankly, on any rational assessment, her dealings with Mr. Pickton in 1991 were only a small event by comparison with the miseries she faced in many other parts of her troubled life.” The plaintiff had alleged that Pickton had cornered her, groped her body, and threatened to rape her.
The jury found in the plaintiff's favour and awarded her $45,000 as damages, which was less than Pickton's offer to settle for $50,000.
In his cost analysis, the trial judge stated that “[t]he dominant fact against Ms. Nixon […] is that she refused an offer to settle which she ought reasonably to have accepted.”
The trial judge only awarded the plaintiff her legal costs up until the date of Pickton's offer to settle. The judge refused to award her costs for the period that followed his offer. Pickton requested that he be awarded his legal costs from the date that his offer was made through to the end of the trial. The judge refused his request, stating that the plaintiff was the successful party at trial, and it would be wrong to award any portion of the trial costs to Mr. Pickton. In short, the parties were each made to bear their own legal costs after the offer was made.
The practical consequence for this plaintiff was that she likely netted very little compensation, despite her success at trial, because she had to cover her lawyer's fees that accrued after she rejected Mr. Pickton's offer to settle. One question that arises is whether this same decision could also have been made in Ontario, where the legislative scheme differs from that of British Columbia.
Ontario's Victims' Bill of Rights, S.O. 1995, chapter 6, specifically addresses when a victim of crime sues convicted perpetrators of the crime. The preamble to the Victims' Bill of Rights states that victims should be treated with compassion and fairness and “the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.”
One provision intended to further these goals relates to legal costs. Section 4(6) states that when a judge orders costs in favour of a victim, those costs “shall” be made on a solicitor-client basis (now known as “substantial indemnity basis”), such as after a favourable outcome at trial, unless the judge considers that to do so would not be in the interests of justice. Where costs on a substantial indemnity basis are awarded, the successful party is able to recoup a much greater percentage of his or her legal costs incurred than when the costs are awarded on the lower scale, known as “partial indemnity” costs.
Section 4(6) reflects the guiding principles of the Victims' Bill of Rights, namely, that victims should be treated with compassion and fairness. In K.T. v. Vranich, 2011 ONSC 683, Justice Whitten stated at paragraph 29 of his reasons for judgment that “[t]hose principles dictate that the cost of litigation should not be borne by [a victim of sexual assault] who is only here by virtue of the intentional actions of [the perpetrator]. Actions in which he sought his own gratification at the expense of [the victim's] autonomy and dignity.”
Moreover, cost awards under section 4(6) of Ontario's Victims' Bill of Rights are not made only against the individual who committed the crime. Where an institutional defendant, such as the convicted defendant's employer, is found liable for its employee's wrongful conduct, section 4(6) will be triggered such that substantial indemnity costs will also be ordered against the institutional defendant (see Evans v. Sproule, 2008 CanLII 58428 (ONSC) at paragraph 138).
However, where a defendant makes an offer to settle before trial, that offer is rejected by the plaintiff, and the plaintiff obtains a result at trial that is less than the amount of the offer, it is unclear how section 4(6) of the Victims' Bill of Rights would interact with the costs regime under Ontario's Rules of Civil Procedure. While the rules relating to legal costs are discretionary and determined on a case-by-case basis, the Rules contemplate the scenario of a rejected offer. Pursuant to Rule 49.10(2), where the plaintiff rejects the defendant's offer and obtains a less favourable judgment than the offer, the defendant is entitled to receive its legal costs from the plaintiff starting from the date the offer was made.
Would that result conflict with the express language of the Victims' Bill of Rights? The answer may be no, especially if one favours a technical approach to the statutory language over one that puts the emphasis on the principles of compassion and fairness for victims of crime. Section 4(6) states: “A judge who makes an order for costs in favour of a victim shall make the order on a [substantial indemnity] basis, unless the judge considers that to do so would not be in the interests of justice.” This provision only applies where a judge makes an order for costs in favour of a victim. A decision that a plaintiff is not entitled to costs does not offend the language of section 4(6), which addresses the quantum of costs. Moreover, the Victims' Bill of Rights does not provide direction on when a judge should make an order for costs in favour of a victim. Finally, the Victims' Bill of Rights gives the judge residual discretion to do what they believe to be “in the interests of justice”.
Applying the Victims' Bill of Rights to the Pickton case provides an illustration of this hypothetical. There, the judge ruled that the plaintiff ought reasonably to have accepted the defendant's offer to settle. As she failed to so, the judge ruled that she was not entitled to her legal costs from the date that the offer was made through to the end of trial. The judge did not make an order for costs in her favour after the date the offer to settle was made, meaning that section 4(6) would not have been triggered. It is only after a judge has chosen to make an order for costs in favour of a victim that they are mandated to do so on a substantial indemnity basis, but a judge always has an overriding discretion to determine to whom and when they will award costs.
While the outcome in the B.C. case may not be at odds with section 4(6) of the Victims' Bill of Rights, there is nonetheless an argument to be made that it would offend the Act's underlying principles, namely that a victim of crime be treated with compassion, fairness, and that victims not be discouraged from participating in the justice process. Where a victim of a sexual crime reasonably believes that they are entitled to a higher quantum of compensation than a defendant has offered, the victim ought to be entitled to take the matter to trial without fear of being unable to recoup their legal costs. That said, victims who are plaintiffs in civil lawsuits would be well advised to objectively evaluate the strengths and weaknesses of their claims and give careful consideration to any offer to settle that is made by a defendant.
Elizabeth Grace is a civil sexual abuse lawyer in Toronto and has specialized in sexual assault matters for nearly two decades.
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