When “Yes” Doesn’t Mean Yes: How Civil Courts Look At Consent In Sexual Assault Cases Differently Than Criminal Courts

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:

1. that sexual touching happened,

2. that it was not consented to, and

3. 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.

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Wagg Motions: Reforms Needed To Stop Delays And Unnecessary Costs When Accessing Criminal Records For Civil Sexual Assault Proceedings

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:

1. 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.

2. 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.

3. 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

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.

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The Evolution Of Vicarious Liability In Sexual Abuse Cases (Part 2)

Authored by: Erika Tower and Zahra Vaid.

Application in Recent Cases

There have been several decisions in the past five years where Canadian courts have considered vicarious liability in the context of sexual misconduct. For the second installment of our two-part series, we delve into the application of vicarious liability in recent Canadian judicial decisions in the context of sexual misconduct. Building upon the foundational principles and framework outlined in Part One, we will examine key cases from the past five years, highlighting the courts' considerations, the evolving contours of the legal doctrine, and its impact on survivors' ability to seek justice.

1. C.O. v. Williamson 2020 ONSC 3874

In this case, the plaintiff (represented by Elizabeth Grace of Lerners) was sexually abused by her high school music teacher and band leader, Mr. Williamson, both on school premises and while driving her to and from band related events in his personal vehicle. The trial judge, 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.

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 the school board, the trial judge did not differentiate between the abuse Mr. Williamson committed on and off 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. Relying on the Supreme Court of Canada’s requirement for a strong connection between the misconduct and the tasks assigned to the wrongdoer, the trial judge found all of the abuse Mr. Williamson perpetrated against the plaintiff was connected with his job as a teacher and band leader.

2. John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27, leave to appeal denied 2021 CanLII 1097 (SCC)

The Newfoundland Court of Appeal also imposed vicarious liability on a Catholic Archdiocese in in this case, where four boys were sexually abused by the Brothers of Mount Cashell, an orphanage established and funded by the Roman Catholic Episcopal Corporation of St. John’s. The court held that the Archdiocese not only established the orphanage, but had an ongoing role in administering, servicing, operating, and financially supporting it, and ensured that the Roman Catholic faith informed the education and religious training of the residents.

The court found there was also a strong connection between the risk of harm introduced by the Archdiocese and the materialization of that risk, as it provided the Brothers staffing Mount Cashel with the power, environment, and tools to carry out their wrongdoing. The wrongdoing was “virtually undetected, while they were supposed to be carrying out the Archdiocese’s legitimate objectives of caring for and educating” its residents.

There was a sufficiently close relationship between the Archdiocese and the Brothers, and a strong enough connection between the sexual assaults and the assigned duties of the Brothers, to result in a finding of vicarious liability. Doing so also upheld the policy objectives of the doctrine.

3. HN v School District No. 61, 2024 BCSC 128,

In this British Columbia decision, vicarious liability was not imposed against the school district for sexual abuse committed by a private tutor it had recommended to the plaintiff’s parents. The school allowed the tutoring sessions to occur in an empty classroom, but there were no allegations of any significant inappropriate behaviour occurring at the school itself. Eventually, the tutor, 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, which is where the sexual abuse occurred.

The court found that the only relationship the school had with Mr. Redgate was when he tutored the plaintiff in the classroom at the school, but when he was doing it in his own home, it was not “for the school” in any sense as the school did not authorize, organize, facilitate, control or benefit from those meetings. Accordingly, there was not a sufficiently strong connection between the school and Mr. Redgate, or what the school was asking him to do and Mr. Redgate’s wrongful acts. In other words, the school’s connection to Mr. Redgate did not significantly increase the type of harm that actually occurred.

4. Dunford v. Hamilton-Wentworth District School Board, 2024 ONSC 2991

Vicarious liability was also held not to apply in this recent Ontario decision. The plaintiff attended an alternative school which was funded by two provincial ministries through Chedoke-McMaster Hospital and operated on Hospital grounds. While a student, the plaintiff was sexually abused by the director of and “tutor” (the title given to teachers) at the school, who was also a doctor at the Hospital. When the plaintiff was absent from school for an extended period, the defendant director attended the plaintiff’s apartment with schoolwork and alcohol that they consumed together. After the plaintiff returned to the school, he started attending the defendant director’s home to talk about his future, and the two continued to consume alcohol together. The plaintiff was driven home afterwards and was sexually assaulted on two occasions in his apartment.

In determining whether the Hospital (that funded the school) was vicariously liable for the defendant director’s misconduct, the Court concluded in the context of his role at the school, that the defendant was acting on his own account and not on behalf of the Hospital. There was not a close enough relationship between the director and the Hospital. With respect to policy considerations, Justice Vermette stated: “[c]ompensation would not be fair given that the Hospital was too remote from [the defendant] for it to be acting on his behalf and for his conduct to be regarded as a materialization of the Hospital’s own risks” and would have no deterrent effect.

Conclusion

Practically speaking, the ability of a plaintiff survivor of sexual abuse to recover their damages depends significantly on whether vicarious liability is imposed on an organization with the ability to pay, or with insurance coverage

The recent decisions in HN v School District No. 61 and Dunford v. Hamilton-Wentworth District School Board should not be interpreted as a shift away from the imposition of vicarious liability in civil sexual abuse claims. In both cases, there was not a sufficiently close relationship between the wrongdoer and the schools, or a strong enough connection between the abuse and the conduct authorized by the school, and therefore the test for vicarious liability could not be met. The abuse in both these cases occurred off school properly, but more importantly, was found by the courts not to be sufficiently connected to school approved activities.

The facts of these two cases are different and distinguishable from C.O. v. Williamson and John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, where there was a close relationship between the school and the wrongdoer, and a strong connection between the wrongful acts of the perpetrators whose conduct was authorized by the organizations in question. To date, neither of these two earlier decisions have received negative treatment by any Canadian court, and they remain good law and persuasive authority for vicarious liability in sexual abuse cases.

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

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Sexual Abuse Survivors Beware — The Defamation Risk

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.

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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 by Law360 Canada, 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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Elizabeth Grace Quoted In Toronto Star Article On Sexual Abuse At Centre For Addiction And Mental Health (CAMH)

WARNING: This article contains details of abuse.

"It's unacceptable that CAMH is allowing vulnerable patients, vulnerable women, to be sexually assaulted in a place where they deserve to be safe," Grace told the Star.

Elizabeth Grace was interviewed for an article published January 10, 2025 in the Toronto Star about a tragic incident at the Centre for Addiction and Mental Health (CAMH) in Toronto, where a young woman seeking help for suicidality was sexually assaulted by another patient in what CAMH called its “secure” waiting room. The attack, captured on surveillance footage, lasted 90 seconds before any staff intervened.

The victim and her mother are now suing CAMH, alleging negligence for failing to ensure the patient’s safety and for its poor handling of the aftermath, including inappropriate questioning of the patient.

Read the article here.

Elizabeth Grace and her team specialize in guiding survivors through the legal process with respect, sensitivity, and compassion, and they work to fearlessly pursue the vindication, accountability, and closure survivors deserve.

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 preliminary consultation.

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Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.

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Elizabeth Grace Quoted In CBC News Article

WARNING: This article contains details of abuse.

"The average person cannot afford $50,000 just to proceed with a lawsuit that has its own risks and stresses … On top of that, they've got to pay money out just for the privilege of pursuing justice? It's a huge barrier."

Elizabeth Grace was interviewed for an article in CBC News about a Manitoba court that ordered that two sisters must pay $50,000 each as security for costs to proceed with their civil lawsuit against a former church youth leader accused of sexually assaulting them between 1974-1979. Read the article here.

Elizabeth Grace and her team specialize in guiding survivors through the legal process with respect, sensitivity, and compassion, and they work to fearlessly pursue the vindication, accountability, and closure survivors deserve.

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 preliminary consultation.

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Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.

416.601.2378 | egrace@lerners.ca

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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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Elizabeth Grace Mentioned In The Catholic Register Column

Elizabeth Grace was recently interviewed for a column in The Catholic Register, where she touched on alternative ways to come to binding agreements in cases of alleged sexual abuse. Read the article here.

Elizabeth Grace and her team specialize in guiding survivors through the legal process with respect, sensitivity, and compassion, and they work to fearlessly pursue the vindication, accountability, and closure survivors deserve.

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 preliminary consultation.

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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.

416.601.2378 | egrace@lerners.ca

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Lerners Welcomes Madeleine Cleland

Lerners LLP is pleased to announce the arrival of Madeleine Cleland to our Toronto sexual abuse team.

Formerly an articling student with Lerners, Madeleine returned to our Toronto office as an Associate in the Sexual Abuse and Plaintiff Personal Injury groups.

As a fierce advocate for her clients, Madeleine is motivated to help survivors and victims navigate the legal system while getting them the justice they deserve.

Learn more about Madeleine here.

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ABOUT LERNERS LLP

Lerners LLP has grown to become one of Ontario’s largest law firms with offices in London, Toronto, Strathroy and Waterloo Region. Ours is a history of more than 90 years of successful client service and representation and today we are more than 140 exceptionally skilled lawyers with abundant experience.

To arrange an interview with Madeleine or for more information, please contact:

Natalee Davis
Director of Marketing and Firm & Community Engagement
Lerners LLP
519.640.6327
ndavis@lerners.ca

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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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.

416.601.2378 | egrace@lerners.ca

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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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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.

416.601.2378 | egrace@lerners.ca

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