LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
Death Knell Of Limitations Defence In Sexual Assault, Courtesy Of Harvey Weinstein
Elizabeth Grace makes a plea to defence lawyers in Ontario that they finally acknowledge and accept the breadth and meaning of the provisions in the Limitations Act that apply to sexual abuse and misconduct, and they stop asserting statutory limitation period defences.
I don’t understand why, but I continue to see Statements of Defence that plead limitations defences in sexual abuse cases. Lawyers for institutional and individual defendants alike don’t seem willing to let go of an antiquated defence that no longer has any validity in Ontario.
It is now five years since significant amendments were made to Ontario’s Limitations Act, and it still bears repeating: There is no, I repeat no, statutory limitation period in Ontario for any claim arising from or relating to sexual abuse, no matter who that claim is against. Indeed, there has not been one since at least 2016, and arguably since the predecessor Limitations Act came into effect in 2004, although that iteration of the Act admittedly had some complicated exceptions and twists to it.
Long gone are the days when plaintiff lawyers practicing in the area of sexual abuse had to contend with a 4-year statutory limitation period for assault and battery, six years for negligence, none for breach of fiduciary duty, and a common law discoverability doctrine that the Supreme Court of Canada, in its ground-breaking decision in the civil incest case M.(K.) v. M.(H), 1992 CanLII 31, refined to apply to the sexual abuse context.
Ontario’s limitations regime in all respects, but especially in claims relating to sexual abuse, is now a much simpler and easier one to work with than when I first start to practice twenty-five years ago. Junior lawyers practicing in the abuse area will never appreciate the contortions that used to happen – on both sides of the fence – and more senior lawyers versed in the old ways need, frankly, to wake up and appreciate that times have changed. Our limitations laws have adapted to reflect society’s increased awareness of the prevalence of sexual assault, especially against women and children, the deep harms it causes, and to reduce the already heavy burden on those seeking justice and redress for historical wrongs they have suffered.
Recently, I came across a short, but instructive decision by Justice Patrick Monahan of Ontario’s Superior Court of Justice that nicely makes my point: Jane Doe v. Weinstein, 2018 ONSC 1126 (CanLII). I must have been busy or preoccupied when it was first released, as I missed it, but given the players involved, including Harvey Weinstein as the primary offending party, a Miramax movie shot in Toronto in 2000, and lawyer Marie Henein of Jian Ghomeshi notoriety acting for the plaintiff, rather than for a criminally accused client, it must have received some attention at the time.
In short, the plaintiff under the pseudonym Jane Doe sued not only Harvey Weinstein and some well known corporate entities in the entertainment field, but also a Barbara Schneeweiss, said to have been an assistant to Weinstein who did not actually sexually assault the plaintiff but did facilitate Weinstein’s sexual assaults. The claims against Ms. Schneeweiss were for intentional infliction of mental injury, negligence, negligent misrepresentation and negligent infliction of nervous shock.
Ms. Schneeweiss moved to strike the claims made against her in the Statement of Claim. She did so on various grounds, including that these claims were all statute-barred because they fell outside of the 2016 amendments to the Ontario Limitations Act that eliminated limitation periods for sexual assault.
A brief interlude is needed here to explain the pertinent provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
First, it bears remembering that the term “assault” is defined in s. 1 of the Act to include a battery, which in plain English means an unwanted or non-consensual touching.
Second, sub-sections 16(1)(h) and (h.1), (1.1) and (1.3) are the operative provisions in any case related to sexual assault or sexual misconduct.
To paraphrase, the essence of these provisions is as follows:
There is no limitation period in respect of “a proceeding based on a sexual assault” (s. 16(1)(h)). Note: There is no limitation period for “a proceeding”, and a proceeding may and usually does include within it various claims asserted against various parties. Also, this does not read “for sexual assault”; it reads “based on a sexual assault”, which is broader than “for” and means arising or derived from.
There is also no limitation period in respect of “a proceeding based on any misconduct of a sexual nature if…the person who committed the misconduct…was in a position of trust or authority in relation to the person with the claim”, or if the person with the claim was “financially, emotionally, physically or otherwise dependent” on the person who committed the misconduct (s. 16(1)(h.1)). Note: Again, the language here is expansive. “Misconduct of a sexual nature” captures a broad array of wrongful behaviour that extends beyond actual non-consensual sexual touching to include verbal, written and on-line forms of sexual harassment, intimidation and abuse. The focus on the nature of the relationship between the parties is also an indication that one is to look beyond titles or labels to the real power dynamics operating as between the parties.
So long as a proceeding against a non-offending party is “in relation to” a sexual assault, it will not be time-barred, and for added clarity, the Limitations Act states that this rule “includes” claims for negligence, breach of fiduciary duty or any other duty, or for vicarious liability (s. 16(1.3)). Note: This captures proceedings involving, and thus claims against, third parties – meaning individual and institutional defendants other than the actual perpetrator of the sexual assault or sexualized misconduct, who are alleged to have facilitated or enabled the wrongful conduct through their own negligence or other fault-based conduct, or who are said to be liable by operation of the no-fault doctrine of vicariously liable.
The above rules have retroactive and restorative effect because they apply “whenever the Act on which the claim is based occurred and regardless of expiry of any previously applicable limitation” (except where there was a dismissal and the time for appeal has lapsed, or where there was a legally binding settlement) (s. 16(1.1)). By restorative, I mean these rules restore or revive a claim that had previously expired under an old limitation period.
The judge hearing the motion to strike in Jane Doe v. Weinstein made it clear: Where a proceeding involves a claim for civil liability that arises from or is related to a sexual assault, that claim will not be time-barred under Ontario’s Limitations Act. As Monahan J. said about all of the claims against Ms. Schneeweiss:
Although [these] are not for the sexual assaults themselves, they all involve civil liability for actions that relate directly to Weinstein’s sexual assaults on [the plaintiff]. Schneeweiss is said to have facilitated the assaults, with knowledge, recklessness or indifference to the consequences for [the plaintiff]. Thus, all of the allegations against Schneeweiss in the Claim are “in relation to” Weinstein’s assaults and are not statute-barred. [para 27]
So, my plea to defence lawyers in Ontario is that they finally acknowledge and accept the breadth and meaning of the provisions in the Limitations Act that apply to sexual abuse and misconduct, and they stop asserting statutory limitation period defences. These defences no longer exist. If in doubt, read the court’s decision in Jane Doe v. Weinstein, which sounded the death knell of the limitations defence for sexualized wrongs and associated actionable conduct.
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Canada’s Highest Court Delivers Wake-Up Call On Child Sexual Abuse: UPDATED
The Supreme Court of Canada has spoken out about the pervasiveness of child sexual abuse and the profound harms it causes, and has implored those involved in the justice system to treat this problem with more care and sensitivity.
The Supreme Court of Canada has spoken out about the pervasiveness of child sexual abuse and the profound harms it causes, and has implored those involved in the justice system to treat this problem with more care and sensitivity. In R. v. Friesen, 2020 SCC 9, a case involving a young victim of sexual offences, our highest court took the opportunity to deliver a wake-up call that extends beyond criminal law to other areas of the law.
As my interest lies with the civil justice system and how it responds to sexual violence against children and other vulnerable persons, I want to speak to why and how R. v. Friesen is relevant to liability and damages in civil cases involving sexualized abuse and misconduct.
The Supreme Court opened its landmark 9-0 decision by stating the obvious: “Children are the future of our country and our communities.” It went on to say it is “send[ing] a strong message” that:
…sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.
These powerful opening words have resonance in the civil context too. The claims (or causes of action) and the compensation (or monetary damages) assessment principles that are the bases for civil liability, must similarly be interpreted and applied in ways that reflect the wrongfulness of the sexual exploitation and violation of children, and the profound and often lifelong harms caused by this wrong.
We recently saw an example of such an approach in the Ontario Court of Appeal’s decision in MacLeod v. Marshall, 2019 O.N.C.A. 842 (CanLII) – see my earlier post on this case entitled “Lower Threshold for Proving Income Losses in Cases Involving Childhood Sexual Abuse and Injury.” In that case, the Court of Appeal clarified that principles for determining loss of income in historic child sexual abuse cases need to be adapted to the unique circumstances facing a victim whose harms were caused before they had finished school and/or started working. The Court of Appeal affirmed that the usual standard of proof – a balance of probabilities – is too harsh where the victim had not yet had the opportunity to start earning income. Instead, it favoured using the lower standard of “chance” or “real or substantial probability.” Thus, in a civil lawsuit involving childhood sexual abuse, this lower standard of proof applies when assessing both past and future loss of income.
This is precisely the kind of adaptation of the law that the Supreme Court of Canada’s decision in R. v. Friesen telegraphs as necessary if we are to recognize and validate the inherent wrongfulness and harmfulness of sexual violence against children. Of note, on April 30, 2020, the Supreme Court of Canada dismissed the application for leave to appeal that was brought by the unsuccessful defendant religious organization in MacLeod v. Marshall. This means the Court of Appeal’s ruling on how to approach loss of income in a historic childhood sexual abuse case is now the law in Ontario, and a highly persuasive legal authority in the rest of Canada.
While the criminal justice system is focussed on punishing individual offenders, the civil justice system has a special role in providing accountability and redress that extends beyond the individual perpetrator to others responsible for the wrongs and/or harms. The civil justice system is uniquely placed to make those who enable or empower (wittingly or not) perpetrators of child sexual abuse legally accountable. By casting the net of accountability and responsibility more widely and being prepared to do so in ever more insightful and reflective ways, the civil justice system can do its part in responding to the Supreme Court of Canada’s call to action on child sexual violence in R. v. Friesen.
There are many “take-aways” from the landmark decision in R. v. Friesen, and what I have done below is distill what the Supreme Court of Canada has said that, in my view, has direct or indirect application to civil sexualized misconduct and abuse cases.
The courts are seeing more cases involving sexual violence against children.
New technologies like the internet are enabling new forms of sexual violence against children, and providing perpetrators with new ways to access and control youth. These technologies are also making qualitative changes to these sexual offences; for example, the online distribution of images repeats the original violation by making its victim live with the knowledge that others may be accessing these images in the future.
Just as legislators have been recognizing, adapting and trying to keep pace with developments in child sexual abuse, “[c]ourts too have been on a ‘learning curve’ to understand both the extent and the effects of sexual violence against children”. The law has had to and will continue to evolve to respond to its prevalence, and to the different manifestations of the wrong and harms it causes.
The wrongful nature of child sexual abuse stems from the fact it represents a simultaneous invasion of a child’s personal autonomy, a violation of the child’s bodily and sexual integrity, and an attack on the child’s dignity and equality.
“Violence is always inherent in the act of applying force of a sexual nature to a child.” Whether or not there is additional physical violence and/or physical injuries that accompany such abuse, any physical contact of a sexual nature with a child is, the Supreme Court has said, “a wrongful act of physical and psychological violence.”
The attack on personal autonomy, bodily integrity, sexual integrity, dignity and equality that sexual abuse against a child represents means courts must consider the resulting psychological harm which will often be more pervasive and permanent than physical harm.
Beyond the life altering consequences that flow to those who are targeted, sexual violence against children has ripple effects, including harm to people who are close to these children and harm to relationships. There is also harm to the broader communities in which the targeted children live, as well as to society as a whole:
Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering … [C]hildren who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood … Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community.
Courts must impose sentences – and I would add, damages awards – that are commensurate with the gravity of sexual offences against children.
It is not sufficient for courts to simply state that sexual offences against children are serious….courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences.
Sexual violence against children “inherently has the potential to cause several recognized forms of harm”. These are harms that manifest themselves:
During childhood, such as self-destructive behaviours, acting out, guilty feelings and shame, lack of trust, low self esteem, inability to concentrate in school, running away from home, sleep disturbances and nightmares, anxiety, and depression; and
During the victim’s adult years, such as difficulty forming loving and caring relationships with others, being prone to engage in sexual violence against children themselves, and struggling with substance abuse, mental illness, PTSD (post-traumatic stress disorder), eating disorders, suicidal ideation, self-harming behaviours, anxiety, depression, sleep disturbances, anger and poor self esteem.
The Supreme Court warned that lower courts must reject the belief there is no serious harm if there was no additional physical violence that caused actual physical injury. It also warned against the tendency to downplay the wrongfulness of child sexual abuse or its harm to the victim where the acts did not involve penetration, fellatio or cunnilingus, but instead involved touching or masturbation. The notion that the latter kinds of sexual touching are “relatively benign” and thus inherently less harmful is, the Supreme Court said, “a myth that must be rejected.” Why? Because it does not provide any meaningful insight into how the actions were experienced by the targeted child.
[C]ourts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale… This is an error — there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. As the Ontario Court of Appeal recognized in Stuckless (2019), physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration… Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. For instance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than an act of fellatio, cunnilingus, or penetration. [emphasis added]
The Supreme Court has reminded us that words matter, including those used by courts when they deal with child sexual abuse. Use of terms like “fondling” or “caressing” must stop. This is because they implicitly characterize the perpetrator’s conduct as erotic or affectionate, instead of inherently violent. Language like this is misleading and risks normalizing the very conduct that is being scrutinized and condemned.
In cases where the target of sexual abuse is too young or otherwise unable or unavailable to provide direct evidence of the actual harm suffered, courts may nonetheless find actual harm based on factors such as breach of trust, grooming, multiple instances of sexual violence, and the young age of the child. The Supreme Court stressed that direct evidence from children or their caregivers is not required for a court to find that children have suffered actual harm as a result of sexual violence.
Sexual interference with a child should not be treated as less serious than sexual assault against an adult, and sexual offences against children should generally be punished more severely than the same offences against adults. I would argue this differentiation has already been recognized in the civil context. Damages awarded to victims of child sexual abuse will usually exceed those awarded to adult victims. Whereas the upper range of general damages in child sexual abuse cases can exceed $385,000 (M. v. Marson, 2018 ONSC 3493 (CanLII)), the upper end of such damages where an adult is targeted is more in the range of $300,000 (Zando v. Ali, 2018 ONCA 680 (CanLII), aff’g 2017 ONSC 1289). For more on these kinds of awards, see my posts “Trends in civil sexual abuse awards, Part 1 and Part 2.”
A child victim’s “participation” in sexual activity is not de facto consent and should never be treated as a mitigating factor. The Supreme Court’s clear directive that such participation is not a legally relevant consideration at sentencing should, I would argue, apply equally to damages in civil sexual abuse cases. The Supreme Court appropriately acknowledged that “Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality.” It warned that a victim’s participation should not distract from the harm suffered, and moreover that the absence of additional overt violence, such as weapons, intimidation and physical injury, does not mean the inherent violence of the sexual abuse of the child should be ignored or downplayed.
Departure from prior precedents, be it from sentencing ranges, and I would add from civil damages awards, may be required to ensure a proportionate punishment and remedy are imposed and granted. The Supreme Court warned that not only should courts be cautious about relying on dated precedents that do not reflect current awareness of the impact of sexual abuse on children, but more recent precedents must also be treated with caution if they simply follow dated precedents. This warning by our top court rings equally true in the civil as in the criminal context.
While protection of children is one of the most fundamental values of Canadian society, the Supreme Court of Canada observed that sexual violence against this vulnerable group “turns this value on its head.” R. v. Friesen is a refreshingly insightful and reflective decision by our highest court that debunks myths and stereotypes and warns about falling prey to common or outdated misconceptions. The Court provides clear direction about how our justice system needs to approach the tragic cases involving child sexual abuse that too often come before it. The Court’s warnings and guidance transcend criminal law and should inform all of the legal contexts in which sexual violence against children arise, including the civil context. R. v. Friesen truly reflects a wake-up call for every one of us.
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Pre-Judgment Interest Developments In The Historical Sexual Abuse Context
Pre-judgment interest (“PJI”) on damages in historical sexual abuse cases involving plaintiffs who seek compensation for wrongs perpetrated against them years and sometimes decades earlier has long been a contentious issue. At what point in time should interest start to accrue, and at what rate?
Pre-judgment interest (“PJI”) on damages in historical sexual abuse cases involving plaintiffs who seek compensation for wrongs perpetrated against them years and sometimes decades earlier has long been a contentious issue. At what point in time should interest start to accrue, and at what rate?
Two recent Ontario court decisions involving adult plaintiffs suing for childhood sexual assault offer answers to these two sometimes vexing questions.
In L.R. v. S.P., 2019 ONSC 1737, the trial judge considered the different approaches that courts have used in the past to determine when a cause of action arises, and thus, when PJI should start to run. These approaches yield different starting points for the calculation of interest which, in a historical claim, can yield hugely discrepant amounts. For example, if the date of the abuse is used, then the interest will be far greater than if the date the action was started is used.
The court in L.R. v. S.P. acknowledged that the date when a claim is reasonably discoverable – i.e., when the plaintiff was reasonably capable of discovering the wrongful nature of the defendant’s conduct and that this misconduct caused harm – is the most common approach for determining when the cause of action arose. The presumption in sexual abuse cases is that this discovery by the plaintiff does not usually happen until the plaintiff receives some sort of therapy or treatment, although this presumption can be rebutted by case-specific circumstances that support a different date (earlier or later).
Once the date for calculating interest is determined, the interest rate for calculating PJI must be decided. In a historical sexual abuse case, where interest may run for potentially decades, the rate of interest can make a significant difference to the outcome. Sections 127 and 128 of the Ontario Courts of Justice Act define what constitutes the PJI rate and how it is to be calculated. For non-pecuniary loss claims for personal injury (i.e., general and aggravated damages), Rule 53.10 of the Rules of Civil Procedure in Ontario fixes the default PJI rate at 5% per year.
However, s. 130(1) of the Courts of Justice Act gives the court a wide discretionary berth to deviate, where it considers it just to do so, from awarding the interest otherwise calculable and owing by operation of ss. 127 and 128 of and Rule 53.10. Where a court does deviate, it must take into account the various considerations set out in s. 130(2) of the Courts of Justice Act, including changes in market interest rates and the circumstances of the case, among a myriad of other factors.
The Ontario Court of Appeal in MacLeod v. Marshall, 2019 ONCA 842, a historical clergy sexual abuse case, recently allowed an appeal from the trial judge’s award of PJI on non-pecuniary damages at the rate of 5% as prescribed by Rule 53.10, finding that the rate of 1.3% should have been used instead based on much lower market interest rates during the relevant time period.
Since interest rates have varied significantly over time, with a high of over 13% in 1990 to a low of 0.5% during parts of 2009 and 2010, one can expect to see much closer attention being given to dates and rates for the calculation of PJI in historical sexual assault cases. Arguments that rates should be lowered from, for example, the default 5% rate prescribed by Rule 53.10, are likely to be met with arguments that the date from which interest should be calculated is not when notice of the claim was given, but rather, a much earlier date when the plaintiff, either through independent means or with assistance from others, connected the wrong to the harms. Where the plaintiff disclosed the abuse to the wrongdoer, to an organization or employer associated with the wrongdoer, to authorities such as police, or to third parties like a doctor or therapist, then there will be evidence of an earlier date when the cause of action arose.
Lawyers for plaintiffs and defendants alike need to give these arguments careful consideration before deciding what course to pursue in terms of date and rate for PJI because the implications for their respective clients can be significant.
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Lower Threshold For Proving Income Loss In Cases Involving Childhood Sexual Abuse And Injury
The Ontario Court of Appeal in its October 25, 2019 decision in MacLeod v. Marshall, 2019 ONCA 842 has clarified that when a minor is injured and later, in adulthood, sues for compensation, they need not prove their past loss of income on the usual balance of probabilities standard.
The Ontario Court of Appeal in its October 25, 2019 decision in MacLeod v. Marshall, 2019 ONCA 842 has clarified that when a minor is injured and later, in adulthood, sues for compensation, they need not prove their past loss of income on the usual balance of probabilities standard. Instead, because at the time of the incidents causing injury the plaintiff was too young to have an established pattern of earnings, the plaintiff need only prove their income loss on the standard of whether there was a “real and substantial possibility” that they would have achieved the claimed earnings but for the incidents.
This clarification of the law has particular application in the historical childhood sexual abuse context where adult plaintiffs seek compensation for harms and losses resulting from assaults perpetrated on them when they were minors. As it turns out, this was precisely what was at issue in the MacLeod v. Marshall case, which involved abuse by a priest against the plaintiff when he was only a child.
Since all income losses that were claimed occurred after the abuse, all such losses were hypothetical in the sense that they were earnings the plaintiff claimed he would have had if he had not been abused. The Court of Appeal therefore held they needed only to be proven on the lower standard of proof, “realistic and substantial possibility”.
The Court of Appeal explained that, once wrongdoing has been established, income loss is to be quantified based on the following analysis. First, consideration needs to be given to what economic opportunities the plaintiff might have had if not abused. Second, consideration needs to be given to what further income the plaintiff could have earned, if any, than what he or she actually earned. Third, the percentage chance that the plaintiff would indeed have earned that additional income, taking into account positive and negative contingencies, must be determined.
This clarification of the law by an appellate court is important because, for too long, plaintiffs in historical sexual assault cases have been met with the objection by defendants that their income loss claims are far too speculative to be recognized as legitimate. The defence argument is usually that, because they were so young when the abuse occurred, it cannot possibly be known what their career paths would have entailed without the abuse. Therefore, they should receive nothing for loss of income, or only a very modest amount to reflect a loss of opportunity or competitive advantage.
The Ontario Court of Appeal’s decision provides a principled basis on which to resist such arguments, but also guidance about the kind of evidence a plaintiff with a claim based on childhood incidents must put forward to succeed with respect to past loss of income. The fact the Court of Appeal in MacLeod v. Marshall declined to interfere with a jury award for combined past and future income loss of almost $1.6 million, gives further credence to the argument that income loss claims in the historical sexual abuse context are ones that deserve to be taken seriously. Defendants and insurers should expect to see many more such claims being advanced. Going forward, Plaintiffs will be less willing to compromise on these claims in the course of settlement negotiations.
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Landmark Ruling in Sexual Assault – Ontario Court Confirms No ‘Cap’ On Damages For Pain and Suffering
It has long been recognized that the policy reasons for a ‘cap’ in catastrophic personal injury cases that result from accidents and negligent conduct simply do not apply to intentional misconduct like sexual assault, which is a distinctive wrong that causes unique harms and injuries.
Concluding the sexual abuse and its impacts were “at the upper end of the worst-case scale,” an Ontario court has awarded a plaintiff $400,000 for non-pecuniary damages: D.S. v. Quesnelle, 2019 ONSC 3230. From ages 5 to 10, the plaintiff had endured horrendous weekly sexual assaults by his stepfather.
In making this award for pain and suffering, the court expressly chose not to be restricted by the ‘cap’ on non-pecuniary damages that the Supreme Court of Canada in its 1978 trilogy of decisions said should apply in catastrophic personal injury cases. This cap was set at $100,000 in 1978, but adjusted for inflation, it amounts to $368,000 in 2019 dollars.
It has long been recognized that the policy reasons for a ‘cap’ in catastrophic personal injury cases that result from accidents and negligent conduct simply do not apply to intentional misconduct like sexual assault, which is a distinctive wrong that causes unique harms and injuries. Unlike other unlawful conduct, sexual assault is a targeted and inherently violent form of abuse of power that humiliates, degrades and violates the dignity of those who experience it.
Notwithstanding its decision to introduce a ‘cap’ into Canadian law, the Supreme Court of Canada has accepted that there are circumstances in which it will not apply. For example, in the defamation context, there is no arbitrary limit on what a person who has suffered damage to reputation and dignity may be awarded as non-pecuniary damages: Hill v. Scientology of Toronto, [1995] 2 S.C.R. 1130.
In 1996, the British Columbia Court of Appeal extended the exception to a case of incest by a father against his daughter, finding the policy justifications for the ‘cap’ simply did not apply: S.F. v. F.G.C., 1996 CanLII 6597 (B.C.C.A.). Unlike with catastrophic personal injury, there is little risk that a plaintiff, who has been sexually assaulted and suffered devastating psychological harms as a result, will be ‘overcompensated’ because of already generous awards under pecuniary heads of damage, such as loss of earning capacity or cost of care, that are intended to provide lifetime economic security. Nor are awards in sexual assault cases ones that could negatively impact the public purse or cause enormous increases in insurance premiums, both concerns that informed the Supreme Court of Canada’s decision to introduce a ‘cap’ on non-pecuniary damages for personal injury.
And yet it took more than two decades for an Ontario court to address the appropriateness of the ‘cap’ in the sexual abuse context. With the release of the decision in D.S. v. Quesnelle, we now have in Ontario an unequivocal statement that the ‘cap’ should not constrain damages for pain and suffering for sexual abuse, and an award that actually exceeds the amount of the cap. This is consistent with the trend towards greater recognition by society and by our courts of the depth of the harms caused by sexual violation and exploitation. While the claim in D.S. v. Quesnelle was undefended, the court’s decision should help pave the way for awards that reflect the full extent of the wrongs perpetrated and their consequences on individual survivors of sexual abuse. Courts need not feel artificially constrained by precedents that have either explicitly or implicitly been informed by the ‘cap’, or by the ‘cap’ itself.
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