LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
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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Vicarious Liability In Sexual Abuse Cases Lagging In Canada?
While the doctrine of vicarious liability is one of the more powerful legal tools to deter and prevent sexual misconduct because it targets employers and organizations, Canada is arguably falling behind other jurisdictions in its application.
While the doctrine of vicarious liability is one of the more powerful legal tools to deter and prevent sexual misconduct because it targets employers and organizations, Canada is arguably falling behind other jurisdictions in its application, says Toronto civil sexual abuse lawyer Elizabeth Grace.
This judge-made doctrine holds organizations accountable for both the negligent and intentional misconduct of their personnel. “It is meant to serve as a deterrent and to compel powerful entities to do more to stamp out sexual misconduct,” says Grace, partner with Lerners LLP.
“Employers and organizations can indirectly facilitate sexual abuse by conferring power and authority on their personnel which, if unchecked, can be misused to harm vulnerable parties. Vicarious liability makes these entities responsible for compensating victims and thereby provides a strong incentive on them to implement measures to discourage this type of wrongful behaviour,” she tells AdvocateDaily.com.
Grace notes Canada was on the leading edge in this area back in 1999 when the Supreme Court of Canada (SCC) advanced the common law to allow for vicarious liability — a no-fault form of strict liability — to attach to employers. The matter involved a claim for damages against a non-profit organization that ran a residential care facility for troubled children based on sexual assaults committed by one of its employees. The plaintiff sought damages on the basis that the organization should be held vicariously liable for the damages caused by its employee.
“Since then, we’ve fallen behind other jurisdictions,” Grace says, pointing to two 2003 SCC decisions involving appellants who suffered abuse in foster homes. In those cases, the SCC found there was no vicarious liability that attached to the public entity in charge of child welfare based on abuse children in foster care had suffered at the hands of their foster parents, Grace says.
“Canada’s top court ruled it was not going to hold the government vicariously liable for misconduct by foster parents against their foster children. But the United Kingdom’s top court recently found a local authority was vicariously liable in a case of foster parent abuse. Likewise, the New Zealand Court of Appeal has found vicarious liability in similar circumstances,” Grace says.
There are contexts in Canada where there is clearly established vicarious liability, such as with clergy sexual misconduct, but Grace says there are other contexts in which Canadian courts have ruled both ways, such as where sexual abuse has been committed against students by school personnel, including teachers.
Grace characterizes a 2017 Ontario Court of Appeal (OCA) decision involving a taxi driver who sexually assaulted his female passenger as “troubling” for the evolution of vicarious liability in Canada.
According to court documents, the plaintiff was at a party late one evening, intoxicated and feeling unwell. A friend called a taxi company to dispatch a taxi to drive her home. The taxi arrived, and the plaintiff alleged that she was sexually assaulted by its driver. The plaintiff sued the driver and the taxi company for damages, claiming the company was vicariously liable for the misconduct of its driver.
The OCA found the taxi company was not vicariously liable and the SCC denied leave to appeal.
“In this era of #MeToo and heightened concern about the prevalence of sexual harassment and sexual assault and the serious harms these cause, we need our courts to grapple with how to extend, not limit, vicarious liability because it is truly one of the best legal tools at our disposal,” Grace says.
“We have to use the law to stop the pervasive problem of sexual abuse and target the more powerful entities in society who can make a real difference,” Grace adds. “I fear Canada may be falling behind other Commonwealth jurisdictions when it comes to applying vicarious liability to sexual abuse committed in novel contexts. We need this form of legal liability to evolve and be used as a tool to reduce instances of sexual misconduct.”
This article originally appeared on AdvocateDaily.com
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Trends In Civil Sexual Abuse Awards: Part 2
In the second instalment of a miniseries on advancing damages in sexual assault cases, Toronto civil sexual abuse lawyer Elizabeth Grace discusses developments in awards for historical childhood abuse.
In the second instalment of a miniseries on advancing damages in sexual assault cases, Toronto civil sexual abuse lawyer Elizabeth Grace discusses developments in awards for historical childhood abuse.
The award ranges for pain and suffering awards in historical childhood sexual abuse cases are steadily climbing, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.
“These inflation-adjusted non-pecuniary ranges act as benchmarks,” says Grace, who has been practising in the area of sexual abuse and misconduct for 25 years. “What I have noticed lately is that defence counsel are starting to acknowledge this.”
She points to a 2004 Ontario Superior Court of Justice matter involving three brothers who had been abused by their former priest. Justice John Kerr found the abuse justified awards at the upper end of the scale and noted the damages suggested by the defence did not “reflect the present-day level of awards for compensation for the effects of sexual assault on individuals in their formative years.”
Grace, partner with Lerners LLP, says the range for childhood sexual abuse for non-pecuniary damages identified in this 2004 decision works out to be approximately $159,000 to $319,000 when adjusted for inflation.
“Fourteen years later, a 2018 case involving a teacher sexually abusing a child provides an even bigger range,” she says.
In that matter, an action was brought by an adult plaintiff against his teacher and the school board for childhood sexual abuse. The plaintiff — who suffers from major depression with dysthymia, post-traumatic stress disorder, substance abuse, and personality disorder of the antisocial and borderline type — alleged that these serious mental health issues and injuries were a result of the sexual abuse perpetrated on him by the defendant.
Grace, who was not involved in the matter and comments generally, says the judge found the inflation-adjusted range of non-pecuniary damages for childhood sexual abuse cases to be $56,000 to $371,000.
“$371,000 is now the high-water mark accepted by our courts,” notes Grace.
Justice Helen MacLeod-Beliveau found the impact of the sexual abuse on the plaintiff was severe and assessed the total damages at $250,000 for general non-pecuniary and aggravated damages. She also awarded $135,587 for future loss of an interdependent relationship.
Grace notes the validation of the future loss of interdependent relationship claim is significant.
“This pecuniary claim recognizes the loss of the ability to form and sustain an interdependent domestic relationship. This is a loss that can be measured and can cause economic hardship because two can live more cheaply than one. It’s recognized that there are efficiencies to living as a couple.”
“Years ago when I started in the sexual abuse area, there was this new loss of interdependency head of damages, and I thought, ‘Wow, this has application to the sexual abuse context.’ Fundamentally, you have people who have suffered a deeply personal wrong, and their trust has been broken. They often have difficulty forming relationships after the abuse. There are intimacy issues, and they will often have flashbacks to the abuse they suffered. This becomes a real problem when forming or maintaining relationships.”
She says it was refreshing to read that the court had found the category of pecuniary loss did apply in this childhood sexual abuse case.
“The decision breathes new life into this category of damages. The court recognized the plaintiff had failed marriages and accepted that there is a real possibility that he’s not going to form another relationship in his remaining years because of the abuse he suffered as a child.”
This article originally appeared on AdvocateDaily.com
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Trends In Civil Sexual Abuse Awards: Part 1
In the first installment of a two-part series on advancing damages in sexual assault claims, Toronto civil sexual abuse lawyer Elizabeth Grace discusses how one recent decision has increased the range for non-pecuniary damages in single incident adult female cases.
In the first installment of a two-part series on advancing damages in sexual assault claims, Toronto civil sexual abuse lawyer Elizabeth Grace discusses how one recent decision has increased the range for non-pecuniary damages in single incident adult female cases.
In an area of law where the significant harms caused by sexual assault and misconduct have been chronically undervalued, a recent Ontario Court of Appeal decision is “significant,” says Toronto civil sexual abuse lawyer Elizabeth Grace.
“There are many reasons why civil sexual assault damages have been historically undervalued,” says Grace, partner with Lerners LLP. “Often there are psychological harms that are ‘invisible’ or perceived as intangible and, as a result, are valued as being lesser.”
There is also complexity around sexual assault victims — with some people having been assaulted before or after the abuse in question — which tends to drive awards down, she tells AdvocateDaily.com.
“Sometimes a person suffered trauma before the main assault and so they had pre-existing problems. If there were prior incidents of abuse or neglect, the defence’s position is that the victim was already compromised, and they only need to be restored to where they would have been without the abuse in question,” Grace says.
She adds, “Victims of abuse will often go on to have troubled lives and suffer further traumas, assaults or have problems with the law. That is frequently a point of contention. Were those subsequent problems caused by the assault in question or were they independent and unrelated?”
Grace says despite these factors often driving down awards and settlements, a 2018 Ontario Court of Appeal decision that addresses the range of appropriate non-pecuniary damages for a single incident of sexual assault against an adult woman brings some needed clarity to the law.
The case involved a female physician who was assaulted by a male colleague in her home. They were both married and co-workers at an Ontario hospital. The sexual assault reportedly consisted of one incident when the man, under the pretext of visiting the woman’s home on an urgent matter, removed his shirt and then, in the bathroom, the rest of his clothes.
Returning to the room, he tripped his female colleague, thrust his erect penis into her face, pulled down her pants and penetrated her vagina. He rolled off after she screamed, and, as she was leaving the room, she saw him masturbate and ejaculate onto the rug, the decision states.
“The defence argued that this type of case is worth $20,000 to $50,000 when parties are essentially equal in terms of power dynamics, and there’s no evidence of long-lasting harm,” says Grace, who was not involved in the matter and comments generally.
The trial judge disagreed and awarded the plaintiff $175,000 for general and aggravated (non-pecuniary) damages. On appeal, the province’s top court affirmed this award, finding that sexual assault is unique and its “humiliating and degrading nature” would justify such an award in circumstances like this.
“The Court of Appeal in its reasons affirmed that the range of non-pecuniary damages in a single incident sexual assault against an adult woman is $144,000 to $290,000,” Grace says. “Those are not the damages you can calculate with precision, such as loss of income or the cost of therapy. Rather, these are damages that compensate for pain and suffering and the loss of enjoyment of life.”
“For victims of sexual assault, the category of non-pecuniary damages has always been a critical part of the compensation awarded. This is why the Court of Appeal’s decision is so important. It will guide lawyers acting on both sides of these cases when they are valuing claims,” she says. “And, of course, this range will have to be adjusted upward to account for inflation in the years to come.”
Stay tuned for part two where Grace will explore damages in childhood sexual abuse cases.
This article originally appeared on AdvocateDaily.com
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Punitive Damages Awarded In Revenge Porn Case
A recent civil case where the court awarded $100,000 in general, aggravated and punitive damages to a victim of “revenge porn” is a significant advancement of the common law.
A recent civil case where the court awarded $100,000 in general, aggravated and punitive damages to a victim of “revenge porn” is a significant advancement of the common law, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.
The Ontario Superior Court of Justice matter involved the plaintiff who was seeking a default judgment against her former boyfriend for damages arising from his abusive behaviour towards her and his posting — without her knowledge and consent — of a sexually explicit video of her on a pornographic internet website.
“This case involved physical assault against an intimate partner,” says Grace, partner with Lerners LLP. In addition, “the plaintiff’s ex-boyfriend and father of her child posted a sexually explicit video on a pornographic website. Her face was visible in the video while his was not, and he allegedly did it as payback because she reported his violence to the police.”
“While she consented at the time to the video being made, she did not consent to its public disclosure to others. By the time she learned about the video being posted online, at least two years had passed, and it was viewed more than 60,000 times, linked to 10 different websites and downloaded who knows many times,” Grace says.
“This was devastating to her, and she was haunted by the fear that others would see it, including her child,” she adds.
While Manitoba has the Intimate Image Protection Act and Saskatchewan, Alberta and Newfoundland have tabled revenge porn laws, there is no similar statute in Ontario, Grace says.
“What the court has done is use judge-made law to provide a remedy for acts of online harassment including revenge porn through the creation of the tort of public disclosure of private facts without consent,” she notes.
In her judgment, Justice Sally Gomery wrote: “A strength of the common law is its ability to evolve and adapt to changing circumstances.”
Her decision noted that the tort of public disclosure of private facts has existed in U.S. law for decades.
“Despite its vintage, it is well-suited for use in the context of internet posting and distribution of intimate and sexually explicit images and recordings. It is the cousin to another privacy tort already recognized in Ontario, intrusion on seclusion,” Gomery wrote. “As such, it is an appropriate, proportionate legal response to a growing problem enabled by new technology.”
Grace, who was not involved in the matter and comments generally, says another interesting aspect of the case was that the plaintiff received a separate award of damages for the breach of privacy she suffered.
“This case was against an individual, not an institution — so it’s significant. We’re not dealing with someone who is wealthy, yet the court awarded $75,000 for general and aggravated damages, plus $25,000 as punitive damages.” These amounts were, Grace stresses, “on top of the $20,000 awarded in general damages for the physical and verbal assaults the plaintiff had endured.”
The role of “punishing” people is often left to the criminal courts, Grace notes.
“In the sexual abuse area, civil courts will sometimes award punitive damages. In this case, the defendant had already been criminally convicted for his physical assaults, which is usually a reason why a civil court won’t award punitive damages,” Grace says. “But here, the court saw fit to award punitive damages for a wrong that had gone unpunished by the criminal court — the defendant’s revenge porn.”
This article originally appeared on AdvocateDaily.com
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Sexual Abuse Cases: Who Pays The Legal Bills?
Elizabeth Grace explains that a sexual abuse plaintiff's legal costs associated with advancing his or her claim can be very significant, especially if the case goes all the way to trial.
A sexual abuse plaintiff's legal costs associated with advancing his or her claim can be very significant, especially if the case goes all the way to trial.
A recent decision of the Supreme Court of British Columbia (“B.C.”), Nixon v. Pickton, 2015 BCSC 1700, highlights the factors that a trial judge may consider in awarding, or refusing to award, costs to a successful plaintiff who has rejected an offer to settle from the defendant, but fails to “beat” that offer at trial.
This decision has attracted some media attention (see“Pickton not responsible for victim's full legal costs” on Findlaw.ca, and “B.C. judge says David Pickton sex-assault victim should have settled” in an article published in The Globe and Mail).
Normally, a successful party's legal costs must be paid by the party who loses at trial. However, to encourage parties to settle before trial, our rules of court include various incentives based on payment of legal costs – specifically, who is to pay, on what scale, and starting at what point in time.
In the B.C. case, David Pickton sexually assaulted the plaintiff in the early 1990s. He was convicted for the assault. Many years later, the plaintiff commenced a lawsuit against Pickton seeking approximately $1 million in damages. She alleged that amongst other injuries, the assault caused her pain and suffering and resulted in a loss of past and future earnings.
Six weeks before the trial was set to begin, Pickton offered to settle the lawsuit for $50,000. Approximately 90 minutes after the offer was made, the plaintiff's lawyer notified Pickton's lawyer that the offer was rejected. The case proceeded to trial before a jury.
The plaintiff faced a number of challenges at trial. The accuracy of her memory was attacked, as was her credibility. Pickton's lawyers argued that the many miseries the plaintiff had suffered in her life called into question whether the assault by Pickton had caused her injuries. The judge agreed, concluding at paragraph 11 of his ruling on costs that “Ms. Nixon appeared to me as a witness who was not dishonest, but as a witness whose memory, and therefore credibility, were ravaged by the exceptionally difficult life she has faced. Frankly, on any rational assessment, her dealings with Mr. Pickton in 1991 were only a small event by comparison with the miseries she faced in many other parts of her troubled life.” The plaintiff had alleged that Pickton had cornered her, groped her body, and threatened to rape her.
The jury found in the plaintiff's favour and awarded her $45,000 as damages, which was less than Pickton's offer to settle for $50,000.
In his cost analysis, the trial judge stated that “[t]he dominant fact against Ms. Nixon […] is that she refused an offer to settle which she ought reasonably to have accepted.”
The trial judge only awarded the plaintiff her legal costs up until the date of Pickton's offer to settle. The judge refused to award her costs for the period that followed his offer. Pickton requested that he be awarded his legal costs from the date that his offer was made through to the end of the trial. The judge refused his request, stating that the plaintiff was the successful party at trial, and it would be wrong to award any portion of the trial costs to Mr. Pickton. In short, the parties were each made to bear their own legal costs after the offer was made.
The practical consequence for this plaintiff was that she likely netted very little compensation, despite her success at trial, because she had to cover her lawyer's fees that accrued after she rejected Mr. Pickton's offer to settle. One question that arises is whether this same decision could also have been made in Ontario, where the legislative scheme differs from that of British Columbia.
Ontario's Victims' Bill of Rights, S.O. 1995, chapter 6, specifically addresses when a victim of crime sues convicted perpetrators of the crime. The preamble to the Victims' Bill of Rights states that victims should be treated with compassion and fairness and “the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.”
One provision intended to further these goals relates to legal costs. Section 4(6) states that when a judge orders costs in favour of a victim, those costs “shall” be made on a solicitor-client basis (now known as “substantial indemnity basis”), such as after a favourable outcome at trial, unless the judge considers that to do so would not be in the interests of justice. Where costs on a substantial indemnity basis are awarded, the successful party is able to recoup a much greater percentage of his or her legal costs incurred than when the costs are awarded on the lower scale, known as “partial indemnity” costs.
Section 4(6) reflects the guiding principles of the Victims' Bill of Rights, namely, that victims should be treated with compassion and fairness. In K.T. v. Vranich, 2011 ONSC 683, Justice Whitten stated at paragraph 29 of his reasons for judgment that “[t]hose principles dictate that the cost of litigation should not be borne by [a victim of sexual assault] who is only here by virtue of the intentional actions of [the perpetrator]. Actions in which he sought his own gratification at the expense of [the victim's] autonomy and dignity.”
Moreover, cost awards under section 4(6) of Ontario's Victims' Bill of Rights are not made only against the individual who committed the crime. Where an institutional defendant, such as the convicted defendant's employer, is found liable for its employee's wrongful conduct, section 4(6) will be triggered such that substantial indemnity costs will also be ordered against the institutional defendant (see Evans v. Sproule, 2008 CanLII 58428 (ONSC) at paragraph 138).
However, where a defendant makes an offer to settle before trial, that offer is rejected by the plaintiff, and the plaintiff obtains a result at trial that is less than the amount of the offer, it is unclear how section 4(6) of the Victims' Bill of Rights would interact with the costs regime under Ontario's Rules of Civil Procedure. While the rules relating to legal costs are discretionary and determined on a case-by-case basis, the Rules contemplate the scenario of a rejected offer. Pursuant to Rule 49.10(2), where the plaintiff rejects the defendant's offer and obtains a less favourable judgment than the offer, the defendant is entitled to receive its legal costs from the plaintiff starting from the date the offer was made.
Would that result conflict with the express language of the Victims' Bill of Rights? The answer may be no, especially if one favours a technical approach to the statutory language over one that puts the emphasis on the principles of compassion and fairness for victims of crime. Section 4(6) states: “A judge who makes an order for costs in favour of a victim shall make the order on a [substantial indemnity] basis, unless the judge considers that to do so would not be in the interests of justice.” This provision only applies where a judge makes an order for costs in favour of a victim. A decision that a plaintiff is not entitled to costs does not offend the language of section 4(6), which addresses the quantum of costs. Moreover, the Victims' Bill of Rights does not provide direction on when a judge should make an order for costs in favour of a victim. Finally, the Victims' Bill of Rights gives the judge residual discretion to do what they believe to be “in the interests of justice”.
Applying the Victims' Bill of Rights to the Pickton case provides an illustration of this hypothetical. There, the judge ruled that the plaintiff ought reasonably to have accepted the defendant's offer to settle. As she failed to so, the judge ruled that she was not entitled to her legal costs from the date that the offer was made through to the end of trial. The judge did not make an order for costs in her favour after the date the offer to settle was made, meaning that section 4(6) would not have been triggered. It is only after a judge has chosen to make an order for costs in favour of a victim that they are mandated to do so on a substantial indemnity basis, but a judge always has an overriding discretion to determine to whom and when they will award costs.
While the outcome in the B.C. case may not be at odds with section 4(6) of the Victims' Bill of Rights, there is nonetheless an argument to be made that it would offend the Act's underlying principles, namely that a victim of crime be treated with compassion, fairness, and that victims not be discouraged from participating in the justice process. Where a victim of a sexual crime reasonably believes that they are entitled to a higher quantum of compensation than a defendant has offered, the victim ought to be entitled to take the matter to trial without fear of being unable to recoup their legal costs. That said, victims who are plaintiffs in civil lawsuits would be well advised to objectively evaluate the strengths and weaknesses of their claims and give careful consideration to any offer to settle that is made by a defendant.
Elizabeth Grace is a civil sexual abuse lawyer in Toronto and has specialized in sexual assault matters for nearly two decades.
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