LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
Recent Compensation Awards Made By Courts To Women Who Were Sexually Assaulted As Adults: Factors That Affect Amounts For Pain and Suffering
Damages for pain and suffering and loss of enjoyment of life in civil sexual assault cases involving women who were violated and abused as adults (not children) have long been undervalued, but following the Court of Appeal for Ontario’s landmark 2018 decision in Zando v Ali, have things changed?
Damages for pain and suffering and loss of enjoyment of life in civil sexual assault cases involving women who were violated and abused as adults (not children) have long been undervalued, but following the Court of Appeal for Ontario’s landmark 2018 decision in Zando v Ali, have things changed?
In Zando, a case involving one occasion of sexual assault against a female physician by her male physician colleague, the Court of Appeal confirmed that the range of damages for pain and suffering for a single incident of penetrative sexual assault against an adult woman was, in 2018 dollars, $144,000 to $290,000. Adjusted for inflation, this now amounts to a range of $162,985 to $328,234. The plaintiff in Zando was awarded $198,072 (in 2022 dollars) for pain and suffering, even though the defence had tried to use the fact that there was no evidence of long-term psychological trauma to lessen her entitlement. The Court of Appeal, upholding the trial judge’s award, confirmed that “damages for sexual battery or assault are not solely to compensate for physical or mental injuries.” Rather, an award for pain and suffering fulfills a range of functions, including “the recognition of the humiliating and degrading nature of the wrongful acts.”
Following Zando, courts have continued to recognize the profound and often lifelong harms caused by a single incident of sexual assault, and this is now being more appropriately reflected in damage awards for pain and suffering for adult survivors of sexual assault and violence. For example, in a recent Ontario case, J.B. v R.B., 2021 ONSC 1023, the plaintiff, who was 33 years old at the relevant time, was sexually assaulted on one occasion while she was sleeping, resulting in pregnancy. Following the defendant being noted in default, the plaintiff moved for default judgment. The plaintiff was awarded $275,000 for pain and suffering, with the court recognizing the “humiliating and degrading nature” of what the plaintiff had endured.
Outside of Ontario, courts have not been prepared to define an acceptable range of compensation for cases involving adult victims of sexual abuse. However, there have been some recent, noteworthy awards made by courts in civil cases outside of Ontario involving both single and repeated sexual assaults on adult women, for example:
ES v Shillington, 2021 ABQB 739 – the plaintiff was repeatedly physically and sexually assaulted by her male spouse. He also posted intimate photographs of her online without her consent. The Alberta court awarded her $225,000 for pain and suffering, stating that the acts perpetrated against her were meant to “control, degrade and humiliate” her, and the impacts she experienced would be “long-lasting and severe.”
Anderson v Molon, 2020 BCSC 1247 – the plaintiff, who was 26 years old at the relevant time, was sexually assaulted by her Catholic priest 70 to 100 times over a series of months. In addition to a substantial punitive damages award, the B.C. court awarded the plaintiff $275,000 for pain and suffering.
D. v Mostowy, 2021 BCSC 1920 – the plaintiff, who was 44 years old at the relevant time, was groomed and repeatedly sexually assaulted by her male boss in the workplace. The assaults involved back and shoulder massages, and escalated to him masturbating on her breasts. The B.C. court awarded her $157,500 for pain and suffering.
M. v Contreras-Ramirez, 2021 BCSC 1341 – the plaintiff as an adult woman was sexually assaulted by her male massage therapist on one occasion. The assault involved groping and digital penetration. The matter was disposed of summarily. The B.C. court awarded her $100,000 for pain and suffering.
Y.H. v Y. LTD, 2021 SKQB 28 – the plaintiff, age 50 at the time, was sexually assaulted on one occasion by a male stranger. While on a bus trip, the bus driver pulled down the plaintiff’s clothing, sucked on her breasts, and attempted to digitally penetrate her. The sexual assault included violence. The Saskatchewan court awarded her $100,000 for pain and suffering, commenting that “all sexual assaults involve a violation of the victim’s sexual integrity.”
While there are many aggravating factors that may entitle a plaintiff to greater damages for pain and suffering, such as their age and vulnerability at the time of the assault or how repeated, violent, or invasive the assault was, as confirmed in Zando and as shown by the recent cases discussed above, there is a deepening recognition by the courts of the inherent wrongfulness and harmful consequences of sexual assault and abuse, including for a single incident.
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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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Criminal v. Civil: How the Criminal Process Can Impact a Parallel Civil Process
The wrong that constitutes a sexual offence is invariably also actionable before the civil courts. As a civil litigator who both advances and defends civil actions based on sexual misconduct, I often encounter cases where there is or may be an overlap between the criminal and civil justice systems.
(This article was published in "For the Defence", Criminal Lawyers Association Newsletter, Vol. 38, No. 2 - July 2017, 18-24)
The wrong that constitutes a sexual offence is invariably also actionable before the civil courts. As a civil litigator who both advances and defends civil actions based on sexual misconduct, I often encounter cases where there is or may be an overlap between the criminal and civil justice systems. I believe it behooves both the criminal and the civil bar to have a basic understanding of how proceedings in one forum may affect those in the other, as this can influence the advice we give clients and the strategies we adopt for advancing clients’ interests. This article is intended as a primer for criminal lawyers on how the criminal can impact a civil process.
“Need to Knows” About the Civil Justice System
In my experience, there are three basic points that arise regularly in the civil sexual assault context that few lawyers, both civil and criminal, seem to appreciate. I will start by addressing these points.
The first relates to limitation period defences. These are time periods prescribed by statute by which one must sue in order to be entitled to compensation. If one is too late and misses a limitation period, one will be barred from bringing a civil claim for compensation, regardless of the merits of case. While limitation periods are a fundamental feature of our civil system, and certainly one that causes plaintiff lawyers no end of worry and grief, they are not a relevant consideration in sexual assault cases.
The Ontario Legislature in 2016 dispensed with all limitation periods for sexual assault, no matter when, in what circumstances, or by whom it is alleged the sexual assault was committed.1 In fact, the explicit absence of any time-bar in which to sue has been expanded in Ontario beyond “sexual assault” (i.e., where there has been actual physical contact of a sexual nature) to “any other misconduct of a sexual nature” if it involved a minor or occurred in a relationship of inequality or dependency. Online sexualized stalking and harassment would be an example of such “other misconduct”. In Ontario, there is also now no limitation period for physical assault where the alleged victim was a minor at the time or it occurred in a domestic or dependent context. Other provinces have enacted, or are in the process of enacting, similar legislative exemptions for limitation periods in sexual assault cases.2 In other words, after years of labouring under restrictive and often uncertain legal rules about when it was too late to sue, the field is now virtually wide open for victims of sexual and physical abuse to sue for compensation.
Second, there is legislation in Ontario, not generally well known by the judiciary or the bar, that provides for a direct right of civil compensation against those convicted of sexual offences. The Ontario Victims’ Bill of Rights states that a person convicted of one of a prescribed list of crimes of violence against persons “is liable in damages to the victim of crime for emotional distress and bodily harm” that has occurred as a result.3 Essentially, this means it is not a matter of whether convicted offenders will have to pay compensation for their wrongdoing, but how much they will have to pay.
Ontario’s Victims’ Bill of Rights goes on to describe how, for certain crimes including sexual and domestic assault, there is a legal presumption of having suffered emotional distress.4 In other words, the onus is on the convicted offender to disprove emotional harm, and not on the victim to prove it. Practically speaking, however, victims are much better off leading evidence to prove the nature and extent of their emotional and other harms if they want to maximize their compensation, and this is generally what happens in a civil sexual assault case. The Victims’ Bill of Rights contains additional provisions that operate to the financial disadvantage of those convicted of sexual and other offences who are subsequently named as defendants in civil suits. This includes a higher (i.e., punitive) rate of recovery of legal costs for the victim than is the norm.5
Third, impecuniosity and declaring bankruptcy will not allow someone who is found civilly liable for sexual assault to avoid having to pay a civil judgment for monetary damages. This means that having no money to pay compensation for reasons that may include that the convicted offender spent all his money on his criminal defence, will not save the offender (or his estate) from eventually having to satisfy the judgment. This is because the federal Bankruptcy and Insolvency Act provides for an exception to the general rule that an order for discharge releases a bankrupt from all previous debts. Where the debt arises from a civil court’s award for damages based on “bodily harm intentionally inflicted, or sexual assault”, the debt survives discharge.6
In short, declaring bankruptcy will not be the “quick fix” or “escape” many assume. The reality is that there is no easy way to escape the obligation to satisfy a judgment debt arising from sexual assault. This judgment quite literally follows the person against whom it is made for life, surviving bankruptcy, and even extending beyond life to become a debt of the offender’s estate.
Timing Implications for the Impact of Criminal on Civil Proceedings
The timing of proceedings is critical to understanding a criminal case’s potential impact, or lack thereof, on a civil proceeding. The two most common scenarios are: (i) where the criminal proceeding concludes first and results either in a conviction or an acquittal, and then is followed by a civil suit, and (ii) where criminal and civil proceedings run in tandem. I will deal with each of these situations.
The starting point is the Criminal Code which provides that “[n]o civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence”.7 Although there seems to be widespread belief to the contrary – i.e., that a criminal proceeding where liberty is at stake necessarily takes precedence over a civil one which is “only about money” – in fact, a criminal case has very little legal impact on a civil case. The exception is where it has resulted in a conviction, in which case its impact is huge and operates to the detriment of the offender. That being said, a criminal case’s practical impact can be significant regardless of its outcome and timing, and it will often influence the course of action taken, both by those who have committed and those who have been subject to alleged sexual assault, and by bystander parties who are often pulled into a lawsuit as parties to it.
(a) Impact of Prior Conviction
Civil lawyers acting for victims of sexual assault always welcome criminal convictions. This is because convictions serve to take one big issue “off the table” – namely, that actionable misconduct occurred. If the offender (or his estate) is a defendant in the lawsuit or intended lawsuit, his conviction all but guarantees he will be liable to his victim for damages. The remaining areas of contention then become whether others who may directly or indirectly have facilitated the sexual assault, such as an employer, are also liable, and how much compensation (i.e., damages) the victim should receive. Sometimes there is also a question, especially where a conviction is based on a plea bargain, as to whether more or worse wrongs were committed than what formed the basis of the conviction and the resulting sentence. If so, these are matters that will have to be litigated in the civil context, but because the backdrop will be one of at least some misconduct having been previously admitted to or found beyond a reasonable doubt to have occurred, the offender will usually be at a disadvantage in defending himself.
A recent decision granting summary judgment against the offender demonstrates this.8 There, the civil court concluded that even though the accused person had been charged with sexual assault but pleaded guilty only to assault and was convicted only of assault, the agreed facts on which his conviction was based clearly evidenced a sexual assault. Indeed, as the convicted offender was a lawyer and his victim his client, the civil court relied on the facts read into evidence by the Crown to find that the lawyer had committed not only a sexual battery, but also breached his fiduciary duty to his client.
The impact of a criminal conviction is specifically addressed in statute. Provincial and territorial Evidence Acts speak to the admissibility and effect of a criminal conviction. The Ontario Evidence Act, for example, provides that proof of a conviction is proof that a crime was committed (so long as it was not successfully appealed, and the time for appeal has expired).9 Importantly, this applies whether or not the convicted person is actually a named defendant in the action, meaning the conviction operates as proof there was wrongdoing even against non-offending defendants to a civil suit.10 Civil lawsuits for sexual assault often name more than just the alleged offender as a defendant. Non-offending persons, like a spouse, an employer, a religious or voluntary organization to which the offender belonged, or the owner of property where the assaults occurred, will often be named as co-defendants with the offender and sometimes will even be sued without the offender being named in the suit, such as where the offender cannot be found, is long deceased, or his presence simply will not add anything of value to the case. Because of the force that a conviction has in a factually overlapping later civil proceeding, the plaintiff in a lawsuit may decide not to wait for trial to obtain a ruling on liability, preferring instead to move for summary judgment on liability to gain an upper hand.11
Basically then, a conviction gives rise to a legal presumption of wrongdoing which, unless rebutted with evidence, is conclusive against all affected parties in a civil suit. The provincial and territorial Evidence Acts do open the door, albeit narrowly, for defendants in civil suits to re-litigate a prior conviction. Thus, the Ontario Evidence Act states that “in the absence of evidence to the contrary”, proof of a conviction in Canada is proof that the crime was committed.12 Much ink has been spilled by courts on when a defendant will be permitted to adduce “evidence to the contrary”. The leading case on point, which arose out of sexual misconduct in the employment sphere, is Toronto v. CUPE.13 There, the Supreme Court of Canada makes it clear that re-litigation of the facts essential to a conviction will only be allowed in very limited circumstances. The court noted we cannot have a legal system that implies that re-litigation will yield a better, more accurate result, or that allows scarce resources of courts, litigants and witnesses to be wasted on a second proceeding that may reach the same conclusion as the first, or that tolerates inconsistencies between decisions and lack of finality, except where to do so advances the administration of justice. The doctrine of abuse of process, which aims to protect the integrity of the justice system as a whole, is the mechanism by which the courts police attempts to re-litigate criminal convictions.
Under this doctrine, the onus is on the convicted party, or the non-offending defendant in the civil suit who seeks to challenge the wrongdoing that the conviction represents, to prove that re-litigation would prevent a potential miscarriage of justice. Examples of when a litigant will be permitted to challenge a prior conviction include: (i) if it can be shown the first proceeding was tainted by fraud or dishonesty, (ii) if fresh evidence not previously available conclusively “impeaches” the original result, (iii) if the issues in the two proceedings are sufficiently different, and (iv) if “fairness” dictates that the criminal result should not be binding in the subsequent civil case. The courts have suggested that the “fairness” exception may be triggered where there was not an adequate incentive to defend in the first proceeding (as the Supreme Court put it, “the stakes were too minor to generate a full and robust defence”),14 or where there was a lack of effective legal representation in the criminal proceeding.15
Perhaps not surprisingly, the effect of Toronto v. CUPE has been to preclude virtually any re-litigation in subsequent civil lawsuits of the essential facts underlying previous criminal convictions. As a result, what criminal defence lawyers need to know is that if their clients are convicted of a sexual offence, those clients should expect to be sued for damages at some point in their future. Even after they die, their estates may be subject to claims arising from sexual misconduct.16
(b) Impact of Prior Acquittal
An acquittal is not necessarily the good news one might assume when it comes to facing a subsequent civil lawsuit. This is the case both from a liability and from a damages perspective.
Unlike convictions, acquittals have no beneficial legal effect on liability in a subsequent civil proceeding that is based on the same alleged wrongdoing that resulted in the acquittal. I often rely on the highly publicized case from the United States of football player O. J. Simpson as a shorthand way to illustrate how this can be: we all know that even though O. J. was acquitted in a criminal court of murdering his wife, the family of his deceased wife established in civil court that he was liable in damages for killing her. The reason for this apparent discrepancy is twofold. First, an acquittal is a statement not of innocence or that no offence was committed, but rather of reasonable doubt as to whether that offence was committed. Second, the standard of proof in a civil case is lower than in a criminal case – proof on a balance of probabilities, or 51% or greater probability it happened, can often be established where proof beyond a reasonable doubt cannot. As M. Rosenberg J.A. observed in one of the leading cases in this area that arose from allegations by a patient of being sexually abused by a hospital nurse:
A finding in the civil case that the defendant probably committed the criminal act of which he or she was acquitted does not undermine the credibility of a system that found there was a reasonable doubt. Thus, it is not a question of whether re-litigation has led to a more accurate result; the system contemplates that different results are possible because of the different burdens of proof.17
Civil courts have taken a hard line on the legal effect of acquittals, finding they are generally irrelevant to a civil suit for damages based on the same alleged misconduct and, therefore, are inadmissible.18 The Ontario Court of Appeal confirmed this is the case even where a criminal trial judge gave reasons for acquittal that expressed an opinion that no wrongdoing had occurred, as opposed to simply concluding there was a reasonable doubt as to whether an offence was committed.19 This is because it is the verdict, not the reasons, that is relevant when determining the legal effect of an acquittal on a subsequent civil proceeding.20
This is not to say, however, that an acquittal does not have practical implications for a subsequent civil suit. It does. Obviously, if the complainant or another important Crown witness was discredited, or other significant problems with the Crown’s case emerged during the course of the criminal proceedings that contributed to the acquittal, then as a practical matter, the acquittal is going to impact a later civil proceeding. It would be folly to think otherwise. Thus, unless the problems that came to light through the criminal case can be overcome, and remember that in a civil case, the alleged offender is compellable and the alleged victim has party standing and, so, is able to exercise direct control over the case to be advanced, it is unlikely a subsequent civil suit will be brought, or if brought be successful.
From a damages perspective, an acquittal is a negative factor for the alleged offender who is sued civilly. While the civil justice system is geared to compensation, not punishment, it does allow for punitive damages where a defendant’s misconduct is so bad it warrants condemnation and deterrence. It should come as no surprise, therefore, that punitive damages are, unlike in most other areas of civil litigation, a common feature in civil sexual abuse cases. However, where an alleged offender was already convicted for his wrongdoing, it is very unlikely a civil court will deem it necessary to further “punish” him through an award for punitive damages as doing so could amount to “double punishment” for the same wrongdoing.21 The converse is true for the acquitted defendant who is subsequently found civilly liable. The court will likely view this person as having escaped punishment and will be more inclined to add to the compensation award an amount for punitive damages to reflect, in effect, a civil “fine”.22
Concurrent Proceedings: “Staying” the Civil in Favour of the Criminal
Although this is something I as civil counsel try to avoid for a variety of reasons, what sometimes happens is that criminal and civil proceedings end up running in tandem. In this situation, it is a common misperception that the criminal trumps the civil. The Criminal Code is unequivocal: there is no automatic suspension or deferral of the civil in favour of the criminal.23 Nonetheless, civil courts do retain the discretion to stay a civil action pending disposition of an ongoing parallel criminal proceeding, and will do so in exceptional or extraordinary circumstances where there is a real risk that the right to a fair criminal trial will be seriously prejudiced by the continuation of the civil case.
The biggest concern criminal defence lawyers tend to have with a parallel civil process is that their client, the alleged offender, is compellable. Indeed, as part of the civil pre-trial discovery process, an alleged offender will have to produce all relevant, non-privileged documents in his possession, power or control and to submit to an oral examination under oath. In my experience, Crown attorneys are often also uncomfortable when there is an ongoing parallel civil proceeding and would be much happier to see it delayed until after the criminal case has been concluded. The Crown’s concern usually centers around the possibility that the evidence will be tainted, or perceived as tainted, thereby undermining the chances for a conviction in an otherwise meritorious case.
The leading case on a stay of a civil action in favour of a criminal proceeding remains Gillis v. Eagleson.24 This was one of those very rare cases where a stay of the civil suit was actually ordered. In other words, exceptional circumstances were found to justify this unusual step. Here, discredited hockey legend Alan Eagleson was the subject of criminal charges in the United States, and therefore, lacked the Charter protections afforded to him if he had been charged in Canada. These protections include the right against self-incrimination and to derivative use immunity, grounded in sections 13 and 7 of the Charter, respectively. However, in Gillis v. Eagleson, the stay of the civil suit was ordered on terms designed to safeguard the plaintiff’s rights – i.e., that in exchange for a deferral of the civil case against him, Eagleson would have to pay into court $40,000 (in 1995, U.S. dollars). This was to address the concern that his assets might otherwise be depleted in the course of him defending himself criminally.
When one considers how the principles in Gillis v. Eagleson, a case that had nothing to do with sexual assault, have been applied in the sexual abuse context, it is clear courts have taken a dim view of impeding in any way the progress of a civil suit, and will do so only in the rarest of circumstances. This is because a stay in a civil proceeding is an extraordinary remedy amounting to an injunction. While potential prejudice to the accused person will obviously feature large given that liberty is at stake, the prejudice to the alleged victim who has a right to seek compensation through the civil courts will not be lightly discounted.
The case of Belanger v. Caughell illustrates how reluctant the courts are to stay a civil suit in favour of a criminal proceeding.25 There, a doctor had been charged with aggravated sexual assault based on the same facts in contention in the ongoing civil proceeding. The doctor moved for a stay of the civil process on the basis that being compelled to answer questions in the civil discovery process would make his defence known to his accuser before she had to give her evidence in the criminal proceeding. The doctor further argued that as credibility would be the fundamental issue at his criminal trial, his right to a fair criminal trial would be compromised. The court hearing the stay motion was not swayed by these arguments, noting that section 7 of the Charter does not entitle an accused person to the most favourable procedures, but only to ones that are consistent with the principles of the fundamental justice. The court concluded that the protections afforded to the doctor under the Charter were sufficient, and declined to order a stay.
My experience is that those on the criminal side tend to view the civil justice system with, at best, suspicion and distrust, and at worst, contempt. It strikes me that these sentiments are often driven by misperceptions and inadequate knowledge of how the other system actually works. Understanding the actual legal repercussions, or lack thereof, of one type of proceeding on another is, in my view, an essential step to formulating effective legal and practical strategies for advancing clients’ interests, whichever side of the case one is on.
Elizabeth Grace is a partner in the Toronto office of Lerners LLP and the co-author of the book, Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths, 2000).
The author thanks articling student Noorain Shethwala for her research contribution to this paper, which ensured that the most authoritative and up to date sources were relied upon.
1) Bill 132, officially known as the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), received Royal Assent on March 8, 2016. Among other things, it introduced sweeping amendments to the provisions of the Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sch. B which addressed claims based on sexual and physical assault.
2) For example, in Manitoba an action may be commenced at any time if the assault was sexual, or at the time of a physical assault, the person with the claim was in a relationship of intimacy with the person alleged to have committed the assault, or otherwise dependent on that person: The Limitation of Actions Act, C.P.S.M., c. L150. Nova Scotia recently amended its legislation to similarly exempt a claim “based on misconduct of a sexual nature” and a physical assault claim where there was a relationship of intimacy or dependency from any limitation period: Limitation of Actions Act, SNS 2014, c. 35. Alberta is currently in the process of revamping its legislation to retroactively remove any limitation period for claims of sexual assault, sexual misconduct (including stalking or sending inappropriate text messages or photos), and physical assault on minors, dependents and partners: see “Alberta to End Time Limit on Civil Suits Around Sexual or Domestic Violence”, the Canadian Press, March 7, 2017.
3) Victims’ Bill of Rights, 1995, S.O. 1995, c. 6, s. 3(1).
4) Ibid, s. 3(2).
5) Ibid, s. 4.
6) Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 178(1)(a.1)(i).
7) Criminal Code, R.S.C. 1985, c. C-46, s. 11.
8) B.(R.) v. S.(E.) (Litigation guardian of), 2017 ONSC 7866.
9) Evidence Act, R.S.O. 1990, c. E. 23, s. 22.1(1).
10) Ibid, s. 22.1(2).
11) See, for example, F.(K.) v. White [2001] O.J. No.847 (CA), and more recently, B.(R.) v. S.(E.), supra, where the court not only granted summary judgment on liability but also on damages.
12) Evidence Act, R.S.O. 1990, c. E. 23, s. 22.1(1).
13) Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. Also see Hanna v. Abbott, 219 O.A.C. 73, and for a helpful articulation of the principles in the previous two decisions, Bank of Montreal v. Woldegabriel, [2007] O.J. No. 1305 (S.C.J.).
14) Toronto v. C.U.P.E., supra, at ¶53.
15) Hanna v. Abbott, supra, at ¶32.
16) Until recently, it was understood that one could not sue the estate of a deceased person more than two years after death. However, a recent Ontario decision has thrown that assumption into question for sexual assault cases, suggesting that because of the distinctive way sexual assault is treated in the Ontario Limitations Act, a lawsuit could actually be brought at any time after death: Fox v. Narine, 2016 ONSC 6499. See my blog, “Court’s Interpretation of ‘Limitations Act’ May Remove Limits for Pursuing Sexual Assaults Cases Long After a Death”, December 2016.
17) Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427 at ¶24.
18) Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 4 ed (Markham: LexisNexis Canada, 2014), ¶19.188.
19) Polgrain v. Toronto East General Hospital, supra.
20) Ibid. M. Rosenberg J.A. referred to policy considerations for why reasons for acquittal are not relevant in a subsequent civil proceeding. These include not only that the complainant has no avenue as a non-party to the criminal proceeding to appeal or otherwise review a criminal judge’s reasons, but also that even the Crown’s right of appeal lies only against the verdict and not the trial judge’s reasons.
21) Indeed, Ontario’s Victims’ Bill of Rights, supra, s. 4(4) mandates a judge to take any criminal sentence imposed on a convicted person into consideration before ordering that person to pay punitive damages to his victim.
22) E. Grace and S. Vella, Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths 2000), pp. 213-217.
23) Criminal Code, supra, s. 11.
24) (1995), 37 C.P.C. (3d) 252 (Ont. Gen. Div.).
25) (1995), 22 O.R. (3d) 741 (Gen. Div.).
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.