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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