SCC Decision Every Sexual Abuse Lawyer Should Know About

Whether it is for negotiation, mediation, motion, pre-trial, trial or appeal purposes, there is one decision every plaintiff lawyer should have on hand: R. v. Friesen, 2020 SCC 9. Although it is a criminal case, this ground-breaking decision by the Supreme Court of Canada has had reverberations — and rightly so — in other areas of the law, including civil sexual abuse claims, family law disputes, child protection cases, and human rights complaints.

Shortly after R. v Friesen was released in 2020, I wrote a blog post in which I stated my belief that this decision’s importance extends far beyond the criminal sentencing context in which it arose — see Canada’s Highest Court Delivers Wake Up Call On Child Sexual Abuse. I wrote there, and have since made this argument in my files, that if one substitutes the word “damages” where the court talks about “sentences” or “sentencing,” the meaning remains as true and relevant to the civil sphere as the criminal one.

Four years later, I feel vindicated in my belief. I now see R. v. Friesen regularly cited in the reported civil abuse case law. It needs to stay this way. Mindsets still need to be changed, and there is no better ally for achieving this than our country’s highest court.

Before describing how civil courts are using R. v. Friesen, let me first summarize some highlights from this remarkable decision.

R. v. Friesen: Highlights

R. v. Friesen involved a young victim of sexual offences. The Supreme Court of Canada addressed the pervasiveness of child sexual abuse and the profound and widespread harms it causes, and it implored those involved in the justice system to treat this problem with more care and sensitivity.

The court opened its landmark 9-0 decision with these strong words: “Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence.”

Through its decision, the court stated:

“[W]e send 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. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm it causes to children, families, and society at large.”

Here are some “takeaways” from R. v. Friesen that I, as a civil litigator practicing in this area for almost three decades, find instructive.

1. Prevalence of child sexual abuse:

The Supreme Court observed that police and the courts are seeing a mushrooming of 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.

2. Evolution of understanding:

Just as legislators have been recognizing, adapting, and trying to keep pace with developments in child sexual abuse, the Supreme Court observed that “[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.

3. Characterization of the wrong as violence:

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,” the Supreme Court said. 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 “a wrongful act of physical and psychological violence.”

4. Resulting individual and broader harms:

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.

Sexual violence against children “inherently has the potential to cause several recognized forms of harm.” The Supreme Court noted that these are harms that manifest themselves:

1) 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

2) 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.

Beyond the life-altering consequences that flow to targeted individuals, 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. Noted the Supreme Court:

“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.”

5. Considerations for sentencing and damages awards:

The Supreme Court directed that 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.

6. Myths and stereotypes:

R. v. Friesen debunks various myths and stereotypes and warns about not falling prey to common or outdated misconceptions.

Lower courts must reject the common belief that there was no serious harm caused if there was no additional physical violence that caused physical injury. Further, 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, has to stop. 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 Court of Appeal for Ontario recognized in R. v. Stuckless, 2019 ONCA 504, 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.”

7. The importance of language:

The Supreme Court reminds us that words matter, including those used by lawyers and courts when they deal with child sexual abuse. The 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.

8. No consent:

A child victim’s “participation” in sexual activity is not de facto consent and should never be treated as a mitigating factor. The court’s clear directive that such participation is not a legally relevant consideration at sentencing should 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.

Examples of Civil Courts Citing R. v. Friesen

As civil courts across Canada are increasingly required to address child sexual abuse, they are now routinely relying on R. v. Friesen as an authority. Consider the following examples:

1. C.O. v. Williamson, 2020 ONSC 3874 – trial decision; teacher/student sexual abuse; R. v. Friesen cited at paragraph 169 in support of awards for general and aggravated damages in childhood sexual abuse cases increasing over time “as society and the courts have become increasingly aware of the very serious, long-lasting damage caused by such abuse.”

2. C.L.H. v. K.A.G., 2022 BCSC 994 – trial decision; brother sexually abused sister when both were minors; R. v. Friesen cited at paragraphs 299-300 for the inherent potential for harm posed by child sexual abuse.

3. A.B. v. C.D., 2022 BCSC 2145 – application decision; child sexual abuse case involving cross applications for publication bans anonymizing both plaintiff and defendant so they would not be publicly identified; R. v. Friesen cited at paragraph 12 to assist in weighing the interests as stake.

4. C.M.A. v. Blais, 2022 BCSC 214 – default judgment with trial assessment of damages; child sexual abuse by adult family friend; R. v. Friesen cited at paragraph 77 for the inherent potential for harm posed by child sexual abuse.

5. A.B. v. Main, 2023 NSSC 47 – trial decision; child sexual abuse by adult neighbour; R. v. Friesen cited at paragraphs 58-59 for the care that must be taken not to over-emphasize the physical acts that did or did not occur (i.e., whether touching was over or under clothing, or whether it involved penetration). Although the Supreme Court’s comments dealt with criminal sentencing, the trial judge found them “also apt in the civil context.”

6. MacIntyre v. McNutt, 2024 NSSC 17 – unopposed trial decision; child sexual abuse by hockey coach/teacher; R. v. Friesen cited at paragraph 25 for the proposition that there is not necessarily a correlation between physical severity of sexual abuse and harm to the victim.

7. H.N. v. School District No. 61 (Greater Victoria), 2024 BCSC 128 – trial decision; child sexual abuse by an adult tutor; R. v. Friesen cited at paragraph 2 in reference to evidence establishing that the plaintiff suffered the types of harms in childhood and extending into adulthood often associated with child sexual abuse; also cited at paragraph 216 in the context of considering whether to award punitive damages, with reference to the prioritization of denunciation and deterrence of sexual offences against children.

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Young Age Does Not Excuse Liability of Perpetrators in Civil Lawsuits for Sexual Assault

Criminal law precludes children under the age of twelve from liability. The same is not true for civil claims. While young age is a factor in assessing liability for sexual assault, a perpetrator under twelve can still be held liable in a civil claim.

The Supreme Court of British Columbia decision in CLH v. KAG, 2022 BCSC 994 has confirmed there is no age limit under which children are automatically excused from civil liability for intentional torts, such as sexual assault. In contrast, under criminal law, children under twelve are absolved of liability. This B.C. decision explains that a child’s age may be a factor in determining civil liability as a child’s age may demonstrate they were incapable of forming the intent required to commit an intentional tort.

Civil liability of children tends to attach at a much earlier age than criminal responsibility. However, children have been excused from civil liability in instances where the courts held that the children were too young to have acted with intention. The defendant in the B.C. case was an adult at the time of trial, but was found to have sexually assaulted his sister when he was aged 10 to 16. His sister was aged 6 to 12 at the time. However, the defendant did not assert he was incapable of forming the necessary intent for the tort of sexual assault nor was this finding made by the trial judge.

From a damages perspective, the circumstances of the parties at the time of the abuse in question—which includes their respective ages—is a relevant consideration. The court in the B.C. case held that while the defendant’s young age was a relevant factor, it did not justify an award significantly below the range of damages awarded in other sexual assault cases. Instead, the consequences for the plaintiff of his wrongful behaviour were given primacy.

The court found the detrimental impact of the defendant’s sexual assaults on his sister was substantial, and it awarded non-pecuniary damages of $200,000. Of note, however, the court declined to award punitive damages because the defendant was a child at the time, and it found the denunciation and deterrence aim of punitive damages awards would not be achieved in the circumstance of a child perpetrator of sexual abuse.

While this issue has not been considered in Ontario in recent years, in 1967, the Court of Appeal for Ontario upheld the decision of the trial judge in Tillander v. Gosselin, 1966 CanLII 231 (ONSC) where the court declined to find a 3-year-old liable for physical assault. This was on the basis that a normal 3-year-old could not formulate the genuine intent to do harm or to perform the act that caused the injury.

The takeaway here is that youth at the time sexualized misconduct was committed does not, on its own, insulate that person from civil liability for significant damages. This is an important consideration for plaintiff and defence lawyers alike to keep in mind.

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Family And Intimate Partner Violence – ONCA Renders Landmark Decision In Ahluwalia v. Ahluwalia

Authored by: Erika Tower, Zahra Vaid, and Elizabeth Grace

Last week, the Court of Appeal for Ontario (ONCA) released its highly anticipated decision in Ahluwalia v. Ahluwalia, 2023 ONCA 476. In this blog, we consider the lessons learned from this much discussed and debated case, after summarizing both the trial and appellate decisions.

In short, the decision was an appeal from the judgment of Justice Renu J. Mandhane of the Ontario Superior Court of Justice (ONSC), in a family law proceeding in which she created and applied the novel tort of family violence, and awarded the wife $150,000 for compensatory, aggravated and punitive damages. In our previous blog, we discussed the new tort and Justice Mandhane’s decision at length.

Writing for a unanimous 3-member panel of the ONCA, Justice Mary Lou Benotto determined that the creation of the novel tort of family violence was unnecessary in light of existing torts which adequately address the harms suffered. Although the new tort was not recognized, the decision provided an important opportunity for the ONCA to comment on the complexity of the various forms of violence and abuse that occur in intimate relationships and how they can be addressed by courts in the context of family law proceedings. The decision clearly states that such violence and abuse should be recognized, denounced and deterred, and confirms the jurisdiction of family court judges to render judgments on tortious misconduct in the course of their proceedings.

Background and Lower Court Decision

In this case, the appellant husband and respondent wife were married in 1999 in India. Shortly after their marriage, the couple immigrated to Canada for better opportunities. They arrived in 2002 with their first child and, like many newly immigrated families, had little social and financial support.

The marriage involved significant and serious emotional, financial and physical abuse of the mother at the hands of the appellant father, which led to the couple’s separation in 2016.

The respondent mother subsequently brought an action for statutory relief including divorce, child support, spousal support, and property equalization. She also claimed damages for the husband’s abusive, coercive and controlling conduct during their marriage.[1]

In assessing damages, Justice Mandhane explained that the “no fault” nature of family law must give way where there are serious allegations of family violence that create “independent, and actionable harms that cannot be compensated through an award of spousal support”.[2] She therefore went on to recognize a new tort of family violence. In her view, this was necessary to stay “abreast of social change” and was also consistent with the compensatory goal of tort law.[3]

In characterizing the tort, Justice Mandhane held that a plaintiff could establish, through specific and particularized conduct, a defendant’s liability for the tort in the following ways:

• intentional conduct that was violent or threatening;

• behaviour calculated to be coercive and controlling to the plaintiff; or

• conduct the defendant would have known with substantial certainty would cause the plaintiff to subjectively fear for their own safety or that of another person.[4]

To establish liability, Justice Mandhane stressed there needed to be a “pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessities of life, psychological abuse, financial abuse, or killing or harming an animal of property”.[5]

In her view, the tort was necessary as existing torts, like assault and battery, did not “fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence”.[6]

After finding liability under the tort of family violence, Justice Mandhane assessed damages at $150,000: $50,000 each for compensatory, aggravated and punitive damages. She then considered the statutory claims and determined that the appellant mother was entitled to the entire proceedings of sale from the matrimonial home.[7]

Ontario Court of Appeal

The appellant husband appealed and asked that the ONCA reject the creation of a new tort. While he conceded some liability, his concession was related to liability for existing torts that Justice Mandhane found in the alternative (i.e., torts of assault, battery, and intentional infliction of emotional distress). He argued that the tort of family violence was “poorly constructed, too easy to prove, and would apply to a vast number of cases and create a floodgate of litigation that would fundamentally change family law”.[8]

The appellant wife argued in response that a novel tort was necessary as existing torts “did not address the cumulative pattern of harm caused by family violence”.[9] However, she proposed a narrower tort of “coercive control”, which would be made out where a person, in the context of an intimate relationship inflicted a pattern of coercive and controlling behaviour that cumulatively was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.[10]

The ONCA without question recognized the significance of intimate partner violence, citing the statistic that nearly half of women and one third of men in Canada have experienced intimate partner violence, and it acknowledged the widespread and intergenerational effects of this kind of abuse. However, the issue before it was whether a new tort of family violence was required to address the problem, or existing alternative remedies were sufficient. The short answer was: “existing torts are flexible enough to address the fact that abuse has many forms” and, therefore, the creation of a new tort of family violence is not necessary.

The creation of a new tort of coercive control was also rejected, and the ONCA took particular issue with the submission that the tort as proposed would not require proof of actual harm, but rather must only involve conduct calculated to cause harm.

According to the ONCA, the torts of battery, assault, and intentional infliction of emotional distress are able to recognize the patterns of behaviour that constitute intimate partner violence, for the purposes of both liability and damages. It also noted with approval that a “pattern” of abuse has previously been used to justify higher damages awards through these existing torts. The ONCA provided a lengthy and helpful discussion of how each of these torts sufficiently addresses such patterns of abuse.

Importantly, the ONCA concluded that it was not a mistake that the trial judge included a tort claim in a family law proceeding, and the compensatory damages awarded were appropriate. However, the ONCA allowed the appeal of the punitive damages award of $50,000, as the trial judge failed to make any finding that an award of general and aggravated damages was insufficient to achieve the goals of denunciation and deterrence. The wife’s damages were therefore decreased on appeal to $100,000, from $150,000.

Comment and Discussion

A Message to the Family Law Bar

Although the ONCA rejected the creation of a new tort of family violence, one of the key takeaways from its decision is its explicit confirmation that tort claims can properly be included in family law proceedings, and significant damages can be awarded.[11]

This acknowledgment is crucial, as many survivors of intimate partner violence only consider civil remedies after the conclusion of their family law claim. This can be inefficient and costly, and judgments more difficult to satisfy after assets have been divided and distributed. Having family law and civil law issues dealt with together avoids duplication of effort and resources, and streamlines the process and outcome.

There are other advantages to addressing tort claims within the family courts. For example, there is a more detailed and fulsome disclosure of assets and income in family law proceedings that is not generally available in a civil proceeding. Given the increasingly resolution-based nature of the family law system, litigants are often focused on reaching a final resolution, to achieve certainty and finality, and allow them to move forward with their respective lives.

The acknowledgment and discussion provided by the ONCA of the pervasiveness and seriousness of the various forms of violence and abuse that occur in intimate relationships is also extremely valuable and can be cited and relied upon in future proceedings involving intimate partner abuse. For example, it is recognized that recurring and ongoing abuse, intimidation, domination and financial abuse can become patterned into daily life, and trial judges need to be alive to these dynamics. It is also clearly stated that where any form of abuse leads to psychological injury, compensation is warranted.

A New Benchmark for Damages

In upholding the compensatory and aggravated damages of $100,000 awarded by the trial judge, the ONCA created a new benchmark for damages in cases involving intimate partner violence. It specifically recognized that the trial judge’s damages assessment was based on the depression and anxiety experienced by the respondent wife as a result of the abuse, the “overall pattern of coercion and control and clear breach of trust”, as well as the ways the appellant husband preyed upon the wife’s vulnerability as a new, racialized immigrant to Canada, which made it difficult for her to meet their children’s daily needs.[12] The ONCA justified the high award in light of society’s “emerging understanding of the evils of intimate partner violence and its harms”.[13]

While it remains to be seen whether leave to appeal to the Supreme Court of Canada will be sought, and if so, granted (we think it unlikely), Ahluwalia has generated significant and valuable discussion among the family and civil bars and the judiciary about the intersection of civil and family law proceedings in the context of allegations of intimate partner violence.

A clear message has emerged: intimate partner violence is serious, and it will no longer be rare or exceptional for claims for damages arising out of such allegations to be included in family court proceedings.

[1] Ahluwalia v. Ahluwalia, 2023 ONCA 476 at para. 16

[2] Ibid at para. 17.

[3] Ibid at para. 19-20.

[4] Ibid at para. 23.

[5] Ibid at para. 24.

[6] Ibid at para. 23.

[7] Ibid at paras. 26-28.

[8] Ibid, at para. 29.

[9] Ibid, at para 33.

[10] Ibid, at para 34.

[11] Ibid, at para. 46.

[12] Ibid, at para 127.

[13] Ibid, at para. 128.

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Criminal Conviction Advantageous For Subsequent Civil Lawsuit: Latest On Summary Judgment In Sexual Assault Cases

In sexual abuse and violence cases that are pursued in the civil courts, it is common for there to have been a prior criminal proceeding involving the same parties and factual issues. Many survivors are unaware that the civil justice system provides an alternative, or an additional, means of recourse and accountability. As a result, they often go directly to the police, thinking the criminal justice system is the only option available to them. Other survivors make a deliberate choice to report first to the police and then go through a criminal proceeding before becoming plaintiffs and pursuing a civil remedy.

In a previous blogpost, a posted article, and a video, I explained key differences between criminal and civil proceedings based on sexual assault allegations and how the two systems of justice – criminal and civil – interact. Here, my focus is on how a criminal conviction can narrow the liability issues that need to be proven in a later civil lawsuit dealing with similar matters.

The recent decision, Lambert et al. v. Lambert, 2022 ONSC 6432, by Regional Senior Justice Mark Edwards serves as a timely reminder that a conviction can dispense with the need to prove an individual defendant’s liability (or legal responsibility) in a civil lawsuit.

In Lambert v. Lambert, the defendant pled guilty to three counts of indecent assault against three family members. Afterward, two of these family members (daughters of the defendant) sued their father by bringing a civil claim. Despite his guilty plea in the criminal proceeding, the father, in his civil Statement of Defence, put forward a complete denial of any wrongdoing.

The plaintiff daughters went to court seeking partial summary judgment on their father’s civil liability. They wanted their father’s legal responsibility for abusing them determined summarily on the basis of his prior conviction, so only the issues of damages and what caused their damages would be left to be determined at trial. The Ontario Court of Appeal in Butera v. Chown Cairns LLP, 2017 ONCA 783 has said partial (as opposed to full) summary judgment will only be granted in rare cases. In Lambert v. Lambert, Edwards RSJ granted the plaintiffs’ motion, while acknowledging that partial summary judgment is reserved only for the “clearest” of cases. The judge found the case before him was one of those clear cases.

In explaining his decision to grant partial summary judgment, Edwards RSJ said, “Plaintiffs who are victims of sexual assault should know at the earliest opportunity that the issue of liability is a non-issue… It is equally important that the defendant understand now, and not later, that liability is no longer an issue.” In granting the motion, the judge said it would be “a rare case where partial summary judgment would not be granted” in circumstances like the ones before him.

Of course, as confirmed by Edwards RSJ, even after liability stops being an issue for resolution because summary judgment on liability has been granted, the plaintiffs must still prove their damages and what caused these. Likewise, if there are other defendants besides the individual defendant who has been criminally convicted, the liability of those defendants will remain to be determined.

It should be noted that Lambert v. Lambert involved a conviction arising from a guilty plea. In law, a guilty plea is an admission of wrongdoing by the accused person. Previously, the Ontario Court of Appeal in Franco v. White 2001 CanLII 24020 upheld a decision to grant partial summary judgment on liability in a sexual assault case in which the accused had entered a plea of “not guilty” and then faced a trial on the merits that resulted in a verdict of “guilty” by the jury.

Here are some “takeaways” from Franco v. White and Lambert v. Lambert, as well as my own years of experience litigating these kinds of cases, that are aimed at helping the reader navigate whether to bring or resist a motion for partial summary judgment on liability in a civil sexual abuse case that follows a conviction (that has not been successfully appealed) in a criminal case involving overlapping parties and issues:

1) Section 22.1 of the Ontario Evidence Act provides that proof of a person’s conviction is proof in another subsequent proceeding that the criminal offence was, in fact, committed by that person unless there is evidence to the contrary. In short, the Evidence Act creates a statutory presumption of wrongdoing in the face of a conviction. This has also been described as giving rise to prima facie proof (to be distinguished from conclusive proof) of the fact of guilt in a later civil proceeding. Other jurisdictions in Canada have similar provisions in their respective Evidence Acts.

2) Proof of a person’s prior conviction is proof not only of the guilty finding, but also of the “essential facts” underlying the criminal offence for which the person was found guilty – i.e., that the person committed certain unlawful acts with the state of mind (or intent) necessary to result in criminal guilt for the particular offence.

3) As a result, convicted defendants cannot re-litigate the essential facts underlying the criminal offence. This means they cannot lead evidence to contradict the key facts behind their convictions.

4) However, the statutory presumption of wrongdoing created by the Ontario Evidence Act (and other Evidence Acts across Canada) can, in certain circumstances, be rebutted (or countered). As the Ontario Court of Appeal in Franco v. White said, “Summary judgment does not follow automatically upon a criminal conviction if the defendant can show that despite the conviction, there is an issue to be tried.” The courts have accepted that defendants may rebut the presumption of wrongdoing to which a conviction gives rise. To do so, they will need to adduce compelling evidence that, in the context of a summary judgment motion, gives rise to a triable issue or, if at trial, is sufficient to discharge the defendant’s rebuttal onus of proof. Examples of where the effect of a conviction may be successfully rebutted are where the conviction was vague, and there was not sufficient similarity between the facts giving rise to the civil claim and those underlying the conviction, or where a defendant lacked adequate incentive to fully defend a minor criminal charge, and it would be unfair to hold the defendant to that result when facing more serious consequences from a civil action. The case law suggests it will be rare for a court to look behind a criminal conviction and find it cannot be relied upon in a subsequent civil proceeding. Certainly, a previously convicted defendant cannot simply repeat their plea of not guilty and assert a blanket denial of the allegations, and expect this to be sufficient to rebut the presumption of guilt. More than this is required.

5) The documents from the criminal proceeding that civil lawyers on both sides need to collect and rely upon to prove (or rebut) the presumption of wrongdoing in the civil proceeding include:

(a) A certificate of conviction (see s. 22.1(3) of Ontario’s Evidence Act, which addresses how to prove a conviction);

(b) In the case of a guilty plea, the transcript of the criminal proceeding that includes the agreed statement of facts, the judge’s reasons for guilty verdict, and the judge’s reasons for sentence; and

(c) In the case of a contested trial on the merits, the transcript of the criminal proceeding that includes the judge’s jury charge and the jury’s verdict (where it was trial by jury), and in a trial by judge alone, the judge’s reasons for conviction, and the judge’s reasons for sentence. (See s. 5 of Ontario’s Evidence Act which addresses admissibility of transcripts and s. 36(1) for when judicial notice can be taken of a judicial document like a judge’s reasons, order, and judgment.)

6) For plaintiffs and their lawyers, there is good legal authority for shortening the civil litigation process by, in effect, taking a big (and often difficult) piece of what has to be proven – namely, the factual allegations of the assault(s) that underpin civil liability – out of the equation. This potentially means a more streamlined litigation process, including a narrower scope for documentary and oral discovery of the plaintiff and a shorter and less distressing process for the plaintiff, who will not be called upon to repeat and re-live the details of what happened through oral examination for discovery, a defence medical examination, and/or at trial through their testimony.

7) However, there are many practical considerations that plaintiffs and their lawyers will need to bear in mind when deciding whether to move for partial summary judgment on liability. These include:

(a)Whether this means they must confine the causes of action pleaded in their Statement of Claim to those that most closely resemble the elements of the criminal offence for which the defendant was convicted, or abandon certain causes of action that introduce new elements that will have to be separately proven to establish liability. In Franco v. White, for example, the plaintiff on the summary judgment motion made a strategic decision to abandon her claims for breach of trust, negligence, and intentional infliction of mental suffering asserted in her Statement of Claim and to limit her claim to one for civil sexual assault. In some cases, restricting the claim made to what aligns most closely with the criminal offence on which the conviction was based will not capture the full extent of the wrongdoing and its impacts;

(b) Whether removing liability from the equation might unduly narrow the defendant’s documentary and oral discovery obligations

(c) Whether the conviction is based on facts that do not cover the full range of factual allegations in terms of types and nature of occurrences and potentially aggravating factors, like threats, violence, breach of trust, and being made to submit to particularly degrading or humiliating acts. If so, there will be good reason not to pursue partial summary judgment, so the full scope of the wrongdoing is before the court when it assesses damages;

(d) Remember that a plea of “guilty” is often based on an agreed statement of facts, which reflects a compromise between the Crown and the accused person. Such a statement will need to be reviewed carefully to determine what was omitted, and how any omissions may detract from the plaintiff’s civil claims for liability and damages;

(e) Whether, in order to prove compensatory damages in the civil proceeding, evidence with respect to the facts of what happened are necessary and helpful to the plaintiff’s case;

(f) Whether, in order to overcome the impediments to punitive damages where there has been a prior conviction (see T. v. D.T., 2021 ONSC 5926 for the guiding principles in this regard), it is necessary to adduce evidence as to what exactly occurred and how, for example, this extended beyond the facts supporting the criminal conviction; and

(g) Whether defence counsel will voluntarily agree to limit discovery of the plaintiff to the issues of damages and their causes. If the Statement of Defence contains a complete denial of wrongdoing despite the prior conviction, determine whether it is worth trying to reach an agreement with the defence lawyer(s) that they will not question the plaintiff on what happened, and will agree to limit their examination to what impacts the assaults (and other events) had on the plaintiff.

For convicted defendants and their lawyers, the following should be considered from the outset:

(a) Whether a blanket (or complete) denial of liability in a Statement of Defence, response to a motion for summary judgment on liability, and/or Request to Admit is advisable, bearing in mind that doing so could give rise to additional damages being awarded against the defendant for their refusal to accept the guilty verdict and their lack remorse and/or an unfavourable cost award for prolonging the litigation;

(b) If the allegations in the civil lawsuit extend beyond the essential facts on which the criminal conviction was based, then consider asserting a partial denial of liability in which only the allegations of fact that extend beyond those that were foundational to the conviction are disputed;

(c) If evidence to rebut the statutory presumption of wrongdoing that arises from a conviction is available, be sure to plead the relevant facts in the Statement of Defence and to adduce this evidence in response to a motion for partial summary judgment on liability and/or to lead it at trial; and

(d) If the presumption of wrongdoing from the conviction is unassailable, then look for ways to shorten the litigation and its associated expense by conducting an examination for discovery of the plaintiff that is focused on damages (and telling the plaintiff’s lawyer in advance that this is the intent), and looking for early opportunities to settle the action.

Unlike a prior acquittal which is not relevant nor admissible in a civil case (see, for example, Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427), a prior conviction has many implications for a later civil lawsuit involving the same parties and essential facts. The potential for summary judgment on liability is just one of these implications. Our courts have made it clear that a criminal conviction can be advantageous for plaintiffs in a later civil action, as it may dispense with the need to prove liability against convicted defendants. The decision to proceed with a motion for partial summary judgment and what position to take in response to such a motion are matters deserving careful and strategic consideration by the parties to a civil lawsuit and their lawyers.

While a prior conviction is by no means a prerequisite to pursuing a civil remedy for sexual abuse and violence, where a conviction does exist, whether based on a guilty plea or a trial verdict of guilty, it will usually allow plaintiff survivors to move through the civil process towards resolution and some closure, more efficiently and confidently. For defendants – both those who have been previously convicted and others who may share legal responsibility for the wrongdoing – a prior criminal conviction can offer opportunities for a more streamlined and cost-effective resolution of a civil matter.

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Prohibitions On Non-Disclosure Agreements In Canada: Ontario’s Amended Bill 26

Also authored by: Vanshika Dhawan

In our previous blog post discussing prohibitions on non-disclosure agreements and, specifically, Ontario’s Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022, we noted that the Bill would go before Ontario Legislature’s Standing Committee on Social Policy on November 22, 2022. Many stakeholders, including experts, community advocates, and student organizations provided oral and written submissions in response to Bill 26. As a result of the submissions, a number of amendments were made to the content of Bill 26, which the Legislature voted to approve on December 1, 2022. The Bill has now passed its third reading and will be placed before the Lieutenant Governor for Royal Assent.

At the outset, we note that earlier drafts of Bill 26 used the language “sexual abuse” to describe the student-employee relations that universities and other post-secondary institutions would be required to address by implementing policies pursuant to the Bill. Now, Bill 26 uses the broader term “sexual misconduct” throughout. Though institutions may still implement their own definitions of “sexual misconduct” in their respective policies, this change acknowledges that “abuse” carries the connotation of physical acts, whereas “misconduct” more readily encompasses both physical and non-physical inappropriate sexualized behaviours.

The most significant amendments to the Bill were made in the subsection that addressed non-disclosure agreements (NDAs). In our previous blog, we examined the subsection restricting NDAs, stating that the provisions, as drafted, were too narrow as NDAs would only be prohibited where “determinations” of sexual abuse were made by a “court, arbitrator, or other adjudicator”. We also addressed the fact that the Bill lacked provisions allowing for NDAs in contexts where it was the survivor-student’s expressed wish and preference. These concerns were also reflected in written submissions made to the Standing Committee by the Canadian Centre for Legal Innovation in Sexual Assault Response (CCLISAR), of which Elizabeth Grace was a signatory.

The amended Bill 26 expands the restrictions on NDAs. These no longer apply only to “determinations” (or findings) of sexual abuse. Now, agreements and settlements entered into after Bill 26 takes effect cannot prohibit the disclosure of the fact that an “allegation or complaint” of sexual misconduct was made against an employee. This means a formal investigation or adjudication process is not necessary to trigger this subsection, and NDAs are restricted as soon as such an allegation or complaint is made. This is a broad prohibition.

In addition, survivor-centric exceptions to restrictions on NDAs have also been explicitly carved out in the amended Bill 26. Similar to the broader legislation introduced (or being introduced) in other provinces, institutions can enter into agreements of set and limited durations that prohibit disclosure of the fact that an allegation or complaint of sexual misconduct was made where the survivor-student requests it. However, there are certain safeguards put into place. For example, the survivor-student must have a reasonable opportunity to receive independent legal advice, there must be no undue attempts to influence the student, and the agreement must include the opportunity for a student to decide to waive their own confidentiality in the future, as well as the process by which to do so.

While it remains to be seen whether these restrictions on NDAs will be expanded to other sectors as we, CCLISAR, and others have urged, the submissions by experts, community members, and student organizations, among others, have led Ontario Legislature to place survivors, rather than alleged perpetrators and their institutional employers, at the centre of these amendments to Bill 26. We believe this is a step in the right direction and that it will, hopefully, encourage greater accountability from perpetrators and their post-secondary education employers and thereby contribute to reducing the epidemic of sexualized violence in our society.

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CCLISAR’s Submission On Bill 26 To The Standing Committee

On November 22nd, written and oral submissions were made to the Standing Committee on Social Policy regarding Ontario’s Bill 26, which addresses the use of Non-Disclosure Agreements (“NDAs”) related to sexual abuse in the context of post-secondary education.

As a member of the Canadian Centre for Legal Innovation in Sexual Assault Response (“CCLISAR”)’s advisory committee, Elizabeth Grace, a recognized expert in the area of civil liability for sexual abuse, was a signatory of the following submission. CCLISAR’s submission addressed Bill 26’s provisions which aim to legislatively restrict NDAs where students have been sexually abused.

CCLISAR is an independent, charitable organization that works to aid survivors of sexualized violence by researching the barriers and perceived barriers to reporting sexual assault and adjudicating claims of sexualized violence. Through this research, the organization hopes to better understand how the experiences of survivors of sexual assault are affected by Canada’s laws and policies.

CCLISAR’s submission on Bill 26 to the Standing Committee praises this first step to limit the use of NDAs in Ontario, and makes recommendations for additions to the Bill to improve access to justice for survivors of sexual abuse and enhance accountability where this abuse is determined to have occurred.

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Attention:

Vanessa Kattar, Committee Clerk

Goldie Ghamari, MPP for Carleton, Committee Chair

France Gélinas, MPP for Nickel Belt, Committee Vice-Chair

Dear Chair Ghamari, Vice-Chair Gélinas and Committee Members,

RE: Submissions on Bill 26, Strengthening Post-Secondary Institutions and Students Act, 2022

We write with submissions on Bill 26 and, in particular, on proposed sub-section 16.1(5) of Schedule 1 and sub-section 32.0.1(5) of Schedule 2, both of which aim to legislatively restrict non-disclosure agreements (“NDAs”). Overall, we commend this first step to limit, by statute, the use of NDAs in Ontario.

The Canadian Centre for Legal Innovation in Sexual Assault Response

The Canadian Centre for Legal Innovation in Sexual Assault Response (“CCLISAR”) is a charitable and non-partisan organization that seeks to better understand the gap between Canada’s laws and policies and its effects on the social problem of sexual harm and the experiences of survivors of sexualized violence. This includes research into the barriers and perceived barriers to reporting sexual assault and effective mechanisms and design frameworks for adjudicating claims of sexualized violence. CCLISAR as an organization has engaged in research and education with respect to NDAs, which has included assessing problems associated with their use in Canada, the legislative efforts to date in this country and elsewhere in the world to restrict them, and the risks and benefits of prohibiting NDAs. A year ago, prompted by Prince Edward Island’s then emerging legislation on NDAs, CCLISAR convened a cross-country panel of legal experts to consider the nature and scope of NDAs in Canada and how to craft solutions to the problems posed by NDAs. For the Committee’s review and consideration: CCLISAR’s recent Position Statement on Legislation Prohibiting Non-Disclosure Agreements is available online.

Joanna Birenbaum is CCLISAR’s Director of Capacity Building and Elizabeth Grace is a member of CCLISAR’s Advisory Committee. We are also both legal practitioners in Ontario with many decades of collective experience in the areas of civil litigation and administrative/regulatory processes and remedies for sexual abuse and violence, which include investigations into sexualized misconduct allegations in contexts like the post-secondary educational sphere. Joanna (called to the Ontario bar in 1998) is a litigator with expertise in multiple areas of law related to sexualized violence, including representing survivors in civil sexual assault claims, anti-slapp applications, and sexual history and records application in criminal proceedings. She prosecutes sexual abuse discipline hearings for a regulated health college and has been the chair of three CCLISAR Independent Review Panels of University sexual violence policies and practices (the reports from these reviews are available here). She is also the co-author of the recent book, Achieving Fairness: A Guide to Campus Sexual Violence Complaints (2020). Elizabeth (called to the Ontario bar in 1995) is a partner of the law firm Lerners LLP, an experienced civil litigator in the sexual abuse field on behalf of plaintiffs and defendants, and an author and co-author of multiple publications in the abuse area, including the seminal book Civil Liability for Sexual Assault and Violence in Canada (2000). In May 2015, she participated in making written and oral submissions for law reform to Ontario’s Select Committee on Sexual Violence and Harassment.

Scope of submission

This submission addresses only the NDA-related proposed amendments to the Ministry of Training, Colleges and Universities Act, 1990 (Schedule 1) and the Private Career College Act, 2005 (Schedule 2) regarding sexual abuse at post-secondary educational institutions, as outlined in Bill 26.

Generally, we welcome legislative amendments that enhance protections for post-secondary students who are subject to sexual abuse by employees of post-secondary institutions and we support the NDA-related aspects of Bill 26. We are also heartened to see that Ontario is taking a first step to prohibit NDAs, since these are often used as a tool to silence survivors of sexualized violence and to prevent accountability by institutions and (alleged) abusers. The fact Ontario has chosen to start by introducing legislative reform in the post-secondary context, where there is a pronounced power-imbalance between students and employees like professors and instructors, is a positive development. We trust this important initiative will be followed by consultation with stakeholders and, ultimately, further legislated restrictions on NDAs in other contexts. Consistent with CCLISAR’s attached Position Statement, we support a nuanced approach to NDA prohibitions. We believe parts of Bill 26 should be revised to improve access to justice for post­secondary student survivors of sexual abuse and to promote institutional and (alleged) abuser accountability, and in this connection make the following observations and recommendations.

1. The word “investigator” is missing and should be added.

The proposed amendments at sub-s. 16.1(5) in Schedule 1 amending the Ministry of Training, Colleges and Universities Act, 1990 and at sub-s. 32.0.1(5) in Schedule 2 amending the Private Career College Act, 2005 provide that agreements between an institution and “any person” shall not contain any term that prohibits the institution from:

“disclosing the fact that a court, arbitrator or other adjudicator has determined that an employee of the institution has committed an act of sexual abuse of a student of the institution…” [emphasis added].

This provision does not explicitly include an internal or external investigator and the determinations resulting from their investigation. Presumably an “adjudicator” would include an adjudicative body like the Human Rights Tribunal of Ontario, but it is unclear whether it would extend to an investigator who is tasked with assessing credibility, applying legal principles, and making findings. The term “adjudicator” is not defined either in the proposed amendments or in the legislation being amended. This leaves ambiguity as to whether an “investigator” under a post-secondary institution or private career college sexual violence policy will be captured by this language.

This apparent oversight is of concern given that a large number of sexual abuse complaints arising in post-secondary educational contexts are resolved by way of internal and/or external investigations, often followed by settlement agreements between the institution, the (alleged) abuser and/or the complainant. These investigatory and resolution processes often do not escalate to the level of involving courts, grievance or other forms of arbitration, or formal adjudications by administrative tribunals. Without the explicit inclusion of “investigators” in the proposed amendments, survivors may be left without the protections the legislation seeks to introduce, sexual abuse that has been determined to have occurred may continue to be concealed through the tool of NDAs, and institutions and abusers may not be held accountable.

Recommendation: We therefore recommend that sub-s. 16.1(5) in Schedule 1 and sub-s. 32.0.1(5) in Schedule 2 be revised to include explicit reference to “investigator”.

2. Provisions preventing disclosure of the student-survivor’s identity and accounting for the student-survivor’s NDA preference should be added.

Bill 26 marks a first step in Ontario to addressing NDAs in the context of sexual abuse. This follows other legislation passed in Prince Edward Island and introduced in Nova Scotia and Manitoba that prohibits settlements that silence survivors from speaking about their experiences related to sexualized violence. Bill 26 instead prohibits institutions from insisting on, or agreeing to, confidentiality as a term of settlement. This is a good and valid approach that we support. However, we recommend revisions to expand the proposed language, as follows.

First, Schedules 1 and 2 should include explicit language stating that institutions and persons related to the institution, including the individual employee found to have committed sexual abuse, must not disclose the student’s name or identifying information, except with the student’s express and informed permission.

Second, the proposed legislation applies to “[a]n agreement between an institution and any person”, including the student-survivor. This would mean that where a survivor declares an intention to bring, or brings, a claim against an institution following a finding of sexual abuse by an investigator or other adjudicator, the institution may not commit to keeping the fact of this finding and the identity of the perpetrator confidential. However in narrow and defined circumstances, a survivor-complainant should be allowed to have their preference for a NDA respected. In this connection, we note other jurisdictions in Canada with actual or proposed legislation restricting NDAs have provisions that carve out exceptions to NDA prohibitions, where it is the express wish and preference of the survivor-complainant and not contrary to the public interest. This exception is missing from Bill 26. A blanket prohibition of the kind found in Bill 26 does not consider the varying circumstances and needs of survivors. There are numerous reasons why a survivor of sexual abuse may wish to enter into an NDA, including but not limited to reputational, safety, reprisal and professional concerns.

Third, given that sexualized violence is fundamentally about the abuse of power, it is essential that where a determination of sexual abuse is made following a complaint by a student, the student-complainant not have more power taken from them. They should have a say and be given a reasonable opportunity to obtain independent legal advice (ILA) via Ontario’s existing and government-funded ILA program for sexual abuse or other means. In this way, they can make an informed decision without risk of undue influence or coercion about their position regarding disclosure of their own identity and the potential advantages and disadvantages of a NDA in their particular situation.

Recommendation: We therefore recommend that language be added to Schedules 1 and 2 to prohibit the institution and any person related to the institution, including the individual employee found to have committed sexual abuse, from disclosing the student-survivor’s name or identifying information, except with the student’s express permission. We also request the addition of an exception that allows for NDAs in circumstances where it is the express wish and preference of a complainant-survivor whose allegations of sexual abuse have been determined to have merit by an adjudicator or investigator. Lastly, we favour explicit reference in the legislation to (i) a survivor’s right to obtain independent legal advice should they wish their identity to be disclosed or want a NDA, and (ii) a requirement that institutions advise survivors of this right and of the availability of government-funded ILA to assist them in their decision-making. While we do not endorse specific language of any particular or proposed legislation in Canada, we emphasize the importance of an approach that promotes greater access to justice for survivors of sexualized violence and greater accountability by those who have been determined to have committed sexual abuse and, where applicable, the institutions which have employed or otherwise facilitated the commission of the abuse.

Finally, we would be remiss if we did not comment on the narrow scope of Bill 26. NDAs should be regulated beyond the post-secondary educational sphere. We strongly encourage the Government of Ontario to introduce legislation, after consultation with stakeholders including legal practitioners and organizations that work with sexual assault survivors, that restricts the use of NDAs in respect of claims of sexualized violence in all contexts (for example, in institutional settings beyond the post-secondary education sphere).

Thank you for this opportunity to have input into Bill 26.

The Canadian Centre for Legal Innovation in Sexual Assault Response

Per:

Joanna Birenbaum, Director of Capacity Building

Per:

Elizabeth Grace, Advisory Committee member

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Prohibitions On Non-Disclosure Agreements In Canada: PEI, Ontario, And Beyond

Authored by: Zahra Vaid, Elizabeth Grace and Vanshika Dhawan

One year after PEI’s Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in the province’s legislature, discussed in our blog In the Hot Seat: Non-Disclosure Agreements in Cases of Sexual Violence, multiple jurisdictions across Canada have been prompted into action.

Nova Scotia, Manitoba, and most recently, Ontario have tabled provincial legislation to regulate the use of non-disclosure agreements (“NDAs”). While Nova Scotia and Manitoba have introduced broad legislation to regulate NDAs in the context of sexual harassment and discrimination similar to what became law in PEI, Ontario’s initiative is narrower and deals only with sexual abuse in the post-secondary education sphere.

The Developing Approach to Regulating NDAs – PEI, Nova Scotia, and Manitoba

Prince Edward Island’s Non-Disclosure Agreements Act was passed on November 17, 2021 and came into force on May 17, 2022. Its purpose is to restrict the use and content of non-disclosure agreements in cases of sexual harassment and discrimination in all out-of-court settlements where a survivor does not want it. It is the first legislation of its kind in Canada. It follows the introduction of similar legislation in jurisdictions across the United States, as well as efforts currently underway in the United Kingdom, Australia, and Ireland. Though the impact of PEI’s Non-Disclosure Agreements Act has yet to be seen, other Canadian jurisdictions are following suit.

In Nova Scotia, a private member’s bill, Bill 144, Non-Disclosure Agreements Act, was introduced to limit the use of NDAs and confidentiality clauses in cases of discrimination and harassment, including sexual harassment. Nova Scotia’s proposed legislation is similar to PEI’s, with nearly identical language. If passed, Nova Scotia’s Non-Disclosure Agreements Act will only allow NDAs where it is the express wish and preference of the survivor, they have had an opportunity to obtain independent legal advice, and no undue attempts to influence them have occurred. Bill 144 passed its first reading on April 7, 2022.

In Manitoba, a private member’s bill, Bill 225, Non-Disclosure Agreements Act, was introduced to restrict the use of NDAs related to claims of harassment and discrimination, with the goal of better protecting survivors of sexual violence. Its language is substantially similar to that used in PEI and Nova Scotia. As of October 2022, Bill 225 has passed its second reading.

All three of these legislative schemes, whether enacted or proposed, put survivors of sexual violence in the driver’s seat. In other words, the NDA is prohibited unless a survivor makes a free and informed choice to enter into an NDA. This includes a reasonable opportunity to receive independent legal advice. However, even when the NDA is the expressed wish and preference of the survivor, it may still be prohibited in certain contexts, such as when the NDA adversely affects the public interest. All three schemes also provide that the NDA must allow for the survivor to waive the confidentiality by a process set out in the agreement itself.

PEI, Nova Scotia, and Manitoba have each introduced broad legislation aimed at varying forms of harassment and discrimination, extending beyond sexual violence. Ontario’s emerging approach is much more limited. It is focused only on a single sector – post-secondary education – and it deals only with “sexual abuse”.

Ontario’s Unique Position in Regulating NDAs

On October 27, 2022, Ontario’s Minister of Colleges and Universities Jill Dunlop introduced Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022. Since its second reading, Bill 26 has been referred to the Standing Committee on Social Policy, which is expected to convene next week.

If ultimately passed, Bill 26 would amend existing legislation to require post-secondary institutions to implement policies to address sexual abuse perpetrated by faculty and staff against students. The proposed scheme would prohibit the use of NDAs in specific contexts.

Bill 26 provides a minimum definition of sexual abuse, informed by the Criminal Code and Human Rights Code, that includes physical sexual relations and touching, behaviour, or remarks of a sexual nature. The proposed legislation empowers post-secondary institutions to further define conduct that falls under sexual abuse in their respective policies.

Bill 26 would also allow institutions to discharge or discipline employees who have committed “sexual abuse”, as defined, against students and to create a prohibition for these employees’ re-employment even when doing so would violate existing employment contracts. The also reinforces former Premier of Ontario Kathleen Wynne’s “It’s Never OK: An Action Plan to Stop Sexual Violence and Harassment” by requiring post-secondary institutions to develop a sexual misconduct policy.

With respect to NDAs specifically, Bill 26 targets agreements, including settlements, which post-secondary institutions make with employees who were found to have committed sexual abuse. If Bill 26 passes, these agreements cannot contain provisions that prohibit the institution from disclosing that an employee was found to have committed sexual abuse against a student. The application of this in Bill 26 is narrow – it would only apply to findings of sexual abuse made by “a court, arbitrator, or other adjudicator.”

Notably, “adjudicator” is not defined in Bill 26 or relevant existing legislation. It is unclear whether “adjudicator” would include internal or external investigators, who are frequently brought in by post-secondary educational institutions to review and address concerns about sexual abuse and harassment. This is particularly problematic considering settlements often follow such investigations, and occur before courts or arbitrators become involved.

It seems Bill 26 affords post-secondary institutions significant discretion. Not only can they define “sexual abuse” in their own internal policies, but it is likely also open to them to define who constitutes an “adjudicator”. This would mean that individual institutions can determine whether the proposed legislative amendments apply to settlements that occur after investigations have determined that allegations of sexual abuse have merit.

Notably, there are no provisions in Bill 26 that speak to the wishes and preferences of the student survivor of sexual abuse. This could lead to situations where a survivor wishes to have an NDA in place but Bill 26 does not allow it. Further, the Bill’s prohibition on NDAs only prevents the disclosure of the fact an employee was determined to have committed an act of sexual abuse against a student. It would still be possible for limitations to be placed on what a survivor can say about their experience, the impacts this has had on them, and the terms of any settlement, including the amount paid.

Ultimately, if royal assent is obtained, these amendments would come into effect on July 1, 2023. The proposed amendments would not apply retroactively to agreements and settlements that pre-date the coming into force date of the applicable legislation, although the Bill would override existing collective agreements.

Access to justice for survivors of sexual violence is a key consideration in assessing any legislative effort concerning NDAs. Restricting the use of NDAs increases the likelihood that perpetrators and their enablers will be held accountable and empowers survivors to share their stories. However, in the context of litigation, prohibitions on NDAs can also reduce the likelihood of early settlements. This can lead to longer legal processes, which are not only time-consuming and costly but particularly burdensome on vulnerable and marginalized survivors.

Providing a survivor the opportunity to make an informed and genuine choice on whether or not to enter into an NDA, based on their unique situation and circumstances, is the best option to protect them and enhance access to justice. Affording a survivor this choice may also aid in their healing process, and allow for finality and greater closure. While Ontario’s legislation is a step in the right direction, it is narrow and focuses on the employment relationship rather than on the needs of the survivor. It remains to be seen whether Bill 26 will be further amended to prioritize survivors, or whether the province is content to allow post-secondary institutions to develop and implement specific policies regarding NDAs and sexual misconduct. It also remains to be seen whether similar prohibitions on NDAs will be introduced in other sectors in Ontario. One has only to think of elementary and high school students who have been abused by teachers and staff, and who gain nothing from the current proposed legislation, to appreciate how limited in scope Ontario’s Bill 26 is.

Next Steps – A Coordinated Legislative Effort?

While no legislation restricting NDAs has been proposed at the federal level to date, Senator Marilou McPhedran is expected to introduce legislation to the Senate in the coming months to prohibit NDAs for specified organizations under federal jurisdiction.

Whatever happens in the federal context, it is clear for now that PEI, Nova Scotia, Manitoba, and Ontario are at the forefront of an evolving discussion in Canada around the need to restrict NDAs. The impact of PEI’s and the emerging legislation will be measured in the years to come and will provide important and practical insight on how to make perpetrators of sexual violence and their enablers more accountable so the extent of this widespread problem in society is reduced, while also facilitating access to justice for survivors.

In Ontario, the Standing Committee on Social Policy will be reviewing Bill 26 and is holding public hearings on November 22, 2022. This provides anyone interested in providing input on the proposed legislation an opportunity to make written submissions to the committee by 7:00pm on November 22. More information on how to do this can be found on the Ontario Legislature’s website.

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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?

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

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. 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:

1. 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

2. 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?

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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Landmark Ruling in Sexual Assault – Ontario Court Confirms No ‘Cap’ On Damages For Pain and Suffering

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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