LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
Our Response To A Recent Statement Issued To Parents By The CDSBEO
Lerner LLP’s sexual abuse team is currently representing a survivor in a claim against a teacher based on abuse that occurred when our client was a student at St John Catholic School in Perth.
The Catholic District School Board of Eastern Ontario (CDSBEO) recently issued a statement to parents. The statement relates to an historic incident of sexual abuse involving a student, by a former occasional teacher named Edward (Ted) Michael Oliver who was employed by the board at St John Catholic High School in Perth Ontario, in 2006.
Our sexual abuse team is currently representing a survivor in a claim against this teacher based on abuse that occurred when our client was a student at St John Catholic School in Perth.
We are also representing other survivors of historic sexual abuse who were former students of St John Catholic High School in Perth. This includes a survivor of sexual abuse by history teacher Jeffrey (Jeff) L. Peters, who was criminally convicted for his misconduct against her.
Recently, the media reported on a third teacher, David Alexander Giroux, also from St John Catholic High School in Perth, who has been charged with sexual offences involving a minor.
If you, or someone close to you, has been sexually assaulted or abused, and would like to know about available legal options, please call us or email us for a free, completely confidential consultation.
We specialize in guiding survivors through the legal process with respect, sensitivity, and compassion, and work to fearlessly pursue the vindication, accountability, and closure survivors deserve.
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Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
The Anatomy Of The Tort Of Family Violence – A Promising Development For Survivors Of Sexual Violence
This tort has the potential to further access to justice for diverse communities.
Earlier this year, in Ahluwalia v Ahluwalia 2022 ONSC 1303, Justice Renu Mandhane of the Ontario Superior Court of Justice gave life to the tort of family violence, ordering a man to pay his former spouse $150,000 in damages for the abuse she experienced during their 16.5 year marriage. Her decision is now under appeal. Judges, lawyers, and many in justice-seeking groups concerned with intimate partner and gender-based violence are waiting to see how the Court of Appeal for Ontario responds to Justice Mandhane’s expansion of our common law to address a deep-seated societal problem.
Although created in the family law context, this tort provides survivors of sexual violence a new avenue of recourse in the civil justice system, where their abusers are family members. Arguably, the tort allows our legal system to begin to grapple with the complexity of sexual violence, as survivors are often also subject to multiple other forms of abuse simultaneously, including emotional, financial, and psychological abuse.
This tort has the potential to further access to justice for diverse communities. In particular, racialized immigrant women, who can be subjected to a myriad of abuse due to their intersecting identities, and who have limited support and resources to hold abusive family members accountable.
Factual Background
Ahluwalia arose from a family law dispute between a father, Amrit, and a mother, Kuldeep. In addition to the property, child support, and spousal support issues, the mother sought “general, exemplary and punitive damages for the physical and mental abuse suffered by [mother] at the hands of the [father]”.[1]
The couple met in Chandigarh, India, in 1999 and married shortly thereafter. They remained married until July 2016, at which point they separated.
While in India, the couple lived in a joint family home. Their relationship was defined along gendered lines, which meant – like many South Asian families – the mother was responsible for the caregiving, and the father was responsible for earning money outside the home. In the early years of their marriage, the focus was on starting a family.[2]
In 2000, the father suggested that the family immigrate to Canada to pursue better opportunities. By March 2002, the father, mother, and their first child had arrived in Canada. As newcomers for whom accreditation was costly and timely, they were required to work full-time in a factory to make ends meet.
Over the course of their marriage, the father was mentally, emotionally, and psychologically abusive. He was financially controlling and extremely aggressive in response to the mother’s efforts to gain independence.[3] The father would require her to seek permission to leave the home, and when the couple hosted dinner parties, she was required to remain in the kitchen.
The father was also physically abusive towards the mother. He would become jealous when she received attention from other men and would engage in severe physical abuse. These episodes of physical abuse were followed by periods of silent treatment, ending only after the mother complied with demands for sexual intercourse.[4]
In sum, the father was prone to angry outbursts when intoxicated and would meet challenges to his authority with physical violence. This violence was condoned by members of his family.[5] Notably, in September 2021, the father was charged criminally with two counts of assault against the mother and one count of uttering threats to cause death, both of which related to events during the marriage.[6]
The Anatomy of the Tort of Family Violence
In assessing the mother’s claim for damages, Justice Mandhane noted it was imperative to properly understand the relevant factual context in the 16-year pattern of emotional, mental, and psychological abuse. She explained that the “no-fault” nature of family law must give way to serious allegations of family violence that create “independent, and actionable harms that cannot be compensated through an award of spousal support”[7] and proceeded to recognize the tort of family violence.
In creating the tort, Justice Mandhane stated, “[w]hile trial judges must be cautious about developing new foundations for liability, there is scope to do so where the interests are worthy of protection, and the development is necessary to stay abreast of social change.”[8]
In her view, this was such a case. She explained that recognizing this tort is consistent with the compensatory goal of tort law, and imperative to remove economic barriers that survivors face when trying to leave violent relationships and access justice.
In her view, “existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness.”[9]
Justice Mandhane characterized the test as follows: a plaintiff must establish conduct by a family member towards the plaintiff, within the context of a family relationship, that:
is violent or threatening; or
constitutes a pattern of coercive or controlling behaviour; or
causes the plaintiff to fear for their own safety.[10]
In order to satisfy the test, the plaintiff must show that the defendant acted with an awareness of their actions (i.e., was deliberate, intentional, or calculated).
Furthermore, for the tort to be made out, the plaintiff will have to plead and prove on a balance of probabilities that a family member engaged in a pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property.[11]
Once liability is proven, the nature of the family violence, including the circumstances, extent, duration, and specific harm, will all be factors relevant to assessing damages. Aggravated damages may be awarded for betrayal of trust, breach of fiduciary duty, and relevant post-incident conduct. Punitive damage awards will generally be appropriate given the social harm associated with family violence.[12]
In this case, Justice Mandhane awarded a total of $150,000 under three heads of damages: $50,000 in compensatory damages related to the mother’s ongoing mental health disabilities and lost earning potential, an additional $50,000 in aggravated damages for the overall pattern of coercion and control and the clear breach of trust, and $50,000 in punitive damages due to the father’s prolonged and abusive conduct which required strong condemnation.[13]
Why is this Important?
It remains to be seen what the Court of Appeal and other trial courts will do with the tort of family violence. While the tort has not yet been considered in any other reported court decision, it is a step towards better understanding the complexity and multifaceted nature of sexual violence, particularly when the perpetrator is a family member.
A majority of survivors of sexual violence are abused by someone they know.[14] Children who experience sexual violence know their perpetrators 90% of the time, and over half of these perpetrators are family members.[15] Given their proximity, family members who commit sexual violence often engage in a pattern of coercive and controlling behaviour, which can be either subtle or explicit, forcing the survivor into dependency.
This leads survivors of sexual violence to comply with the demands of their abusers out of fear for their safety (i.e., physical harm, risk of homelessness, and/or losing contact with loved ones). It is the nature of this coercion and dependency that is not adequately captured by other torts.
Unlike existing torts that focus on harmful incidents, the tort of family violence focuses on long-term patterns of conduct intended to control or terrorize survivors. [16] These existing torts, including assault and battery and the intentional infliction of mental suffering, do not fully capture the cumulative harm that results from such conduct as their focus is on specific and individualized incidents. Thus, while there is overlap with existing torts – a point which Justice Mandhane acknowledged – there are unique elements that have justified the recognition of a new tort.
The tort of family violence provides survivors, their counsel, and the courts with a new tool to express the profoundly calculated and deliberate nature of abuse, and hold perpetrators accountable. It has the potential to recognize that sexual violence and abuse is not an isolated incident and is deeply linked to various other forms of abuse and harm.
Perhaps what is most powerful about the tort of family violence is its potential to recognize and implement intersectionality within our analysis and understanding of abuse. Justice Mandhane’s reasoning in Ahluwalia speaks to the experience of many racialized immigrant women, who simply cannot report the abuse they face due to economic dependency, the presence of children or elders who are dependent on them, the fear of retaliation from community members, as well as the lack of social and financial support.
For many racialized and immigrant groups, discussion surrounding abuse is taboo. Often, when racialized immigrant women share their experiences of sexual abuse with others, they are told to remain in contact with their abusers in the name of keeping family members together and avoiding bringing shame to their family or community. For many, as in Ahluwalia, the motto is “stay quiet, stay happy.” This allows family members who are abusive to continue perpetrating their abuse with no accountability.
Recognition of this new tort provides survivors who are in cyclical patterns of abuse with a remedy that not only sees, hears, and understands them, but also compensates them fairly for the harms they experience.
It is a promising legal development for survivors of sexual violence, and one that our courts should continue to recognize. Ultimately, it is only as our civil justice system develops the tools to understand the complexity of sexual violence that it will be able to better protect survivors and hold perpetrators accountable – and the tort of family violence is a step in the right direction.
[1] Ahluwalia v Ahluwalia 2022 ONSC 1303 at para 27.
[2] Ibid, at para 7-8.
[3] Ibid, at para 108.
[4] Ibid, at para 106.
[5] Ibid, at para 99.
[6] Ibid, at para 19.
[7] Ibid, at para 46.
[8] Ibid, at para 50.
[9] Ibid, at para 47, 54.
[10] Ibid, at para 52.
[11] Ibid, at para 55.
[12] Ibid, at para 57.
[13] Ibid, at paras 114, 119-120.
[14] Adam Cotter and Laura Savage, Statistics Canada, 2019.
[15] Finkelhor, D. (2012). Characteristics of crimes against juveniles. Durham, NH: Crimes against Children Research Center; Whealin, J. (2007-05-22). “Child Sexual Abuse”. National Center for Post Traumatic Stress Disorder, US Department of Veterans Affairs.
[16] Ibid, at para 54.
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In The Hot Seat: Non-Disclosure Agreements In Cases Of Sexual Violence
On November 4, 2021 Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in Prince Edward Island’s provincial legislature.
On November 4, 2021 Green Party opposition leader Lynne Lund introduced the Non-Disclosure Agreements Act in Prince Edward Island’s provincial legislature. This is a bold step that I expect will be followed in other parts of Canada.
The proposed PEI legislation restricts the use and content of non-disclosure agreements (“NDAs”) in cases of sexual harassment and discrimination in all out-of-court settlements where the survivor does not want it.[1] If passed, this legislation would be the very first time that a non-disclosure agreement is subject to any kind of regulation in Canada.
Background and Context
Confidentiality clauses or NDAs in out-of-court settlements in cases of sexual violence – which includes sexual abuse, assault, and/or harassment – have been hotly contested for decades. They have long been used to “gag” and silence survivors of sexual violence, conceal wrongful conduct of perpetrators, and protect powerful individuals and entities, including employers and religious institutions.
In the era of #MeToo and the Harvey Weinstein scandal, NDAs have become particularly notorious, and the criticism of these silencing tools has become far more widespread.
In response to the media scrutiny and exposure of NDAs, legislators have been pressured to take concrete action. Many jurisdictions, primarily in the United States, have moved to restrict or prohibit the secrecy NDAs force upon survivors, primarily in the employment context.
The legislation proposed by Ms. Lund is the first of its kind in Canada. It is modelled on Ireland’s draft Employment Equality (Amendment) (Non-Disclosure Agreements) Bill expected to go into second reading in early 2022.[2] While there are few details available, a similar bill is expected to be introduced by Senator Marilou McPhedran at the federal level.
Other jurisdictions, including the United Kingdom and Australia, are also considering legislation that restricts the use and content of NDAs.
The potential for such legislative reform at both the provincial and federal level in Canada, suggests a renewed commitment to prohibiting the use of NDAs in cases of sexual abuse. With NDAs back in the hot seat, one must ask: how far will this effort go?
Taking a Step Back: What’s Wrong with NDAs?
It is well-known that a majority of civil actions, including cases of sexual abuse and sexual harassment, end in a private settlement between the parties, and not in a public court setting. While a carefully drafted non-disclosure agreement has the potential of serving all parties involved, they often perpetuate harmful conduct against survivors of sexual violence.
Specifically, NDAs that prevent survivors from sharing their experiences of sexual violence can interfere with a survivor’s healing process, and impact how they are able to move forward.
Healing is not a linear process and strategies used may be unique to each survivor. Some survivors may choose to share their stories immediately; others may not be prepared to share until later in life, if at all. However, a restrictive NDA signed years prior may eliminate such an opportunity. Although some NDAs may carve out exceptions and specify who a survivor can discuss their experiences with, such as a partner, immediate family, and/or medical professional(s), this may not be enough. The restriction on who they can say what to – or, in other words, their freedom of expression – can perpetuate the harms they suffered as a result of the abuse and, in many cases, can also leave survivors with the feeling that justice has not been served.
In effect, then, the continued presence of such broad NDAs protects the reputation of perpetrators, employers, and/or organizations, rather than survivors of sexual violence themselves.
This highlights a bigger problem:
Many survivors of sexual violence do not come forward due to feelings of shame, guilt, and a fear for their safety or reputation. Often, this is rooted in well-known historical and contemporary stereotypes and myths about sexual violence.
The ability of survivors who have taken action against perpetrators to speak about and share their experiences can encourage others to come forward and take action. However, if survivors of sexual violence who have already come forward are forced into silence through NDAs, other survivors may not come forward with their experiences as they may be unaware of the extent and prevalence of sexual violence and lack the necessary support and resources.
This allows perpetrators to continue their abuse and harassment, thereby limiting accountability and, ultimately, change.
Recognizing that NDAs, initially created to protect trade secrets and proprietary corporate information, have been weaponized against survivors of sexual violence to impose secrecy and silence them means that it is time that our law-makers intervene by restricting the use and content of NDAs through legislation.
Creating Change: Legislation Restricting the Use of NDAs
Many jurisdictions in the United States moved to enact legislation restricting the use and content of NDAs following the #MeToo movement. As noted, nearly all of the jurisdictions that have passed or introduced such legislation have done so in the employment context. The exception is California, and most recently, PEI.
In 2018, California passed the Stand Together Against Non-Disclosures Act (“STAND Act”), which amended California’s Code of Civil Procedure to prohibit a settlement agreement from preventing the disclosure of factual information related to specific “acts” in certain civil or administrative claims in the context of sexual harassment, sexual assault, and sex discrimination.[3] This was expanded on October 7, 2021, as Governor Gavin Newsom signed the Silenced No More Act into law.[4] The Silenced No More Act builds on the STAND Act by expanding anti-NDA protections to apply to all forms of harassment, discrimination, and retaliation in the employment context, rather than only sexual harassment, sexual assault, and sex discrimination.
The Non-Disclosure Agreements Act proposed in PEI would prohibit the use of NDAs in cases where sexual harassment or discrimination has occurred or been alleged to have occurred, and where the NDA has the “purpose or effect of concealing the details relating to a complaint of discrimination or harassment”, where such an agreement is not the preference of the victim.[5]
The proposed legislation would also:
Establish the permitted and required content of a non-disclosure agreement;
Protect and support survivors who, in relation to an incident of sexual harassment or misconduct, make disclosure to law enforcement authorities, regulated health and care professions, legal professions, or close contacts; and
Create penalties for those who do not comply with the legislation.
Some jurisdictions in the United States which have passed legislation regulating NDAs, including New York State, New Jersey, and Maryland, have distinguished between confidentiality of the fact and terms of settlement, and the underlying allegations.
Ms. Lund’s proposed legislation does not explicitly make such a distinction. However, the legislation does provide that “nothing in this section prohibits the inclusion or enforcement of a provision in a settlement agreement that precludes the disclosure of the amount paid in the settlement of a claim”,[6] suggesting that it is possible for settlement amounts paid as part of an agreement to remain confidential.
Ultimately, it remains to be seen how the Green Party’s proposed legislation will be received on the floor, and whether it or some variation of it will pass into law.
Balancing Interests: How Far Will These Efforts Go?
As noted, with the exception of California and PEI, most jurisdictions that have enacted or introduced legislation restricting the use and content of NDAs have focused exclusively on the employment context. This may be for various reasons, including the fact that the widespread scrutiny of NDAs arose out of employment-related scandals and, therefore, NDAs are thought to be more frequent in employment-related contexts. It may also be because regulating the use and content of NDAs beyond the employment context may be considered “too far” for stakeholders and lawmakers.
Nevertheless, expanding this protective legislation beyond the employment context is imperative. Regardless of the context in which they appear, NDAs can be and are often used to unfairly silence survivors. Although it is reassuring that Ms. Lund’s proposed legislation applies beyond the employment context, whether or not it will ultimately be passed, let alone with such broad application, remains to be seen.
Simultaneously, it is important recognize that settlement of a dispute is generally a positive outcome and it takes two, or more, to settle. Defendants in court cases and, equally, potential defendants who want to avoid being named in a civil lawsuit, need to continue to see a benefit in settling.
One way to ensure that they continue to see settlement as an attractive option is for legislation to distinguish between the fact and terms of settlement, versus the underlying allegations. Some jurisdictions in the United States have recognized this distinction in their statutes, and allowed confidentiality over the fact and terms of settlement.
Doing this may balance competing interests by protecting the right of survivors to share their experiences, while also ensuring that defendants and potential defendants have a sense of finality and closure. Without this, many may choose litigation through the court system and all the risks and expense it entails over settlement.
Ultimately, whether or not the enactment of restrictive legislation will go far enough in protecting survivors of sexual violence who want to settle out of court remains to be seen.
However, I believe it is a step in the right direction, as such legislation will help protect survivors and hold those who perpetrated and enabled the violence against them accountable. It will also encourage survivors to share their stories, foster public dialogue and education, and by doing so, hopefully reduce the prevalence of sexual violence in society.
[1] Bill No. 118, Non-Disclosure Agreements Act, 2nd Sess, 66 Leg, Prince Edward Island, 2021 [“Bill 118”].
[2] Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 (Ireland).
[3] Code of Civil Procedure, Chapter 3.5. Confidential Settlement Agreements, § 1001 (California).
[4] Senate Bill No. 331, Chapter 683: An Act to Amend Section 1001 of the Code of Civil Procedure, and to amend Section 12964.5 of the Government Code, relating to civil actions (California).
[5] Bill 118, s. 4(1).
[6] Bill 118, s. 4(10).
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Criminal Publication Bans And Your Civil Lawsuit: What You Need To Know
There is much reform needed when it comes to criminal publication bans.
Recently, a sexual assault survivor was charged with, and pleaded guilty to, breaking a publication ban protecting her own identity. The ban had been ordered in a criminal proceeding against the survivor’s ex-husband, who was convicted of sexually assaulting her. Such a ban, ordered based on section 486.4 of the Criminal Code, prohibits the sharing of any information that could identify a complainant in a criminal proceeding.
Following the conviction of her ex-husband, the survivor shared a transcript of the judge’s reasons for conviction with friends and family, which was then reportedly passed on to a friend of the guilty party. When the ex-husband learned about this, he contacted the police, and the survivor was charged criminally for breaking the ban. She pleaded guilty, and was fined $2000 and ordered to pay a $600 victim surcharge fee.
After outrage from women’s advocates over this unjust result and national media coverage, the survivor obtained a new lawyer and appealed the conviction. The Crown conceded the appeal, based on an apparent legal technicality (the guilty plea was entered under the wrong section of the Criminal Code), and the survivor’s conviction was overturned. While this case eventually saw justice done, the revictimization of the complainant by the guilty ex-husband, by the Crown, and arguably also by the court that convicted her cannot be undone.
There is much reform needed when it comes to criminal publication bans. These bans are routinely requested by Crown attorneys and ordered by courts in cases involving sexual violence, often without any input from or explanation to survivors. While intended to protect their identity and promote reporting, these bans can be paternalistic and result in the unintended silencing of survivors. It is imperative that complainants are afforded some choice when it comes to sharing their identity, that their input on this be sought both at the outset and conclusion of a criminal proceeding (because they may change their mind), and that they have access to a straightforward and cost-free process to have a ban lifted should they request it.
It needs to be borne in mind here: a criminal case involves the state (Crown) against a person accused of a crime. The complainant (alleged victim of the crime or survivor) is not a party to the criminal proceeding. They are mere witnesses with no control over that proceeding. They give up their privacy, time, emotional resources and often their personal property (such as phone or computer), and more, to assist the criminal process and our society make those who have committed crimes accountable. The publication ban process is in urgent need of reform so it does not impose even greater burdens on survivors.
Publication bans do not just impact a survivor’s ability to share their story with those closest to them, these bans can also impact their ability to share their identity in a related civil lawsuit. The Ontario Superior Court recently confirmed in H.A. v S.M. that naming a plaintiff in civil pleadings where a criminal publication ban has already been ordered risks violating the ban.
For those who want to remain anonymous in their civil lawsuit (i.e. using initials or a pseudonym), a criminal publication ban can actually be of great benefit, potentially removing the usual hurdles to getting an anonymity order (see my colleague Ashley Boyes’ discussion of civil anonymity orders here). For example, and similar to the case of H.A. v. S.M., in United Kingdom of Great Britain and Northern Ireland (Attorney General) v L.A., the Nova Scotia Court of Appeal held that a related criminal publication ban continued to apply in the civil proceeding, overturning an anonymity order by the lower court on the basis that it was duplicative of the criminal ban. In both these civil cases, the plaintiffs were ordered to be identified by their initials as a direct result of the existing criminal publication bans.
While this is good news to some, for others it has the potential to derail or complicate their need to be heard and not further silenced. For those who want to use their name in a civil lawsuit where a ban is already in place, they may have to apply to the court to have the ban lifted. This can add unnecessary complexity and cost to a civil case, and delay justice and compensation for a survivor.
If you are a survivor of sexual violence and a complainant in a criminal proceeding, it is important to consider the implications of a publication ban, including on any potential future civil claim you may wish to bring. Speak with a lawyer for legal advice as early as possible.
Finally, lawyers assisting survivors with civil lawsuits must be alive to the real risks of naming a client in a pleading where there is a related criminal publication ban. The charges laid against the survivor in the case referenced above should serve as a wake up call: until the law and practices around such bans are reformed, breaches of criminal publication bans, even if inadvertent, can lead to stiff penalties and even criminal conviction.
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So You Won The Trial? Now It's Time To Enforce Judgment
Carly Moore helps you to learn about strategies to enforce judgments in sexual abuse cases. Discover how survivors can hold wrongdoers accountable even after winning their cases in court.
After years of litigation and stress, you finally get your day in court and a decision is made in your favour. But is this really success if you can’t collect against the wrongdoer?
In civil claims against perpetrators of sexual violence, success for a survivor usually includes being financially compensated for the harms done.
However, individual defendants may try to evade judgment through unlawful conveyances of property, asset transfers, or even filing for bankruptcy, making enforcement difficult for the successful plaintiff.
Collecting on a judgment debt can require a variety of creative tactics to be deployed by a plaintiff’s lawyer, including examinations in aid of execution, writs of seizure and sale or possession, garnishment, or moving to set aside a fraudulent conveyance.
It’s important for plaintiff and defence lawyers to be aware of the provisions of the Bankruptcy and Insolvency Act, which ensure a bankrupt cannot escape a judgment for sexual assault. In urgent situations, interim relief, such as a Mareva injunction (an order preventing a defendant from disposing of their assets to deprive a successful plaintiff of compensation) should also be considered.
This was recently the case in C.A.O. v. Williamson, 2020 ONSC 6793, whereby my colleague Elizabeth Grace and I successfully stopped a defendant’s unlawful dissipation of an asset in the face of a judgment against him for punitive damages.
In June 2020, Justice Salmers granted judgment in favour of the plaintiff against her former music teacher/band leader, Royce Williamson, for historical sexual assaults: C.O. v. Williamson, 2020 ONSC 3874. As a result, the plaintiff was entitled to recover damages against not only the school board but also Williamson.
In October 2020, as a result of steps taken by us to enforce the judgment debt against Williamson, Williamson’s lawyer advised that Williamson planned to dissipate his only known asset, an RRSP. In response, we moved quickly and on an ex parte basis (i.e., without prior notice to Williamson) for an interim interlocutory order in the form of a Mareva injunction to restrain Williamson from disposing of his RRSP.
Justice Edwards granted the emergency order, finding that it was “beyond controversy that Williamson would have collapsed his RRSP and placed those funds beyond the reach of the Plaintiff and the court.” Justice Edwards also fixed costs of the motion against Williamson in the amount of $1000.
In coming to his decision, Justice Edwards laid out the well-known requirements to succeed on such a motion, which, paraphrased, require a plaintiff to:
disclose all information relevant to a court’s ruling;
provide sufficient detail about her claim, the basis for it, and any arguments made against it by the defendant;
provide some proof that there is a risk of the assets in question being removed from the jurisdiction or dissipated;
undertake (i.e., promise) to pay for any harm caused by the injunction if it turns out to have been unjustified; and
provide some proof that the defendant has the assets in question and they are in the court’s jurisdiction
Importantly, Justice Edwards did away with the requirement for the Plaintiff to give an undertaking to pay Williamson damages, relying on the Ontario Court of Appeal’s decision in Business Development Bank of Canada v. Aventura II Properties Inc., and on the unchallenged findings and judgment of Justice Salmers against Williamson. This means an undertaking will not always be required when the moving party has a judgment in their favour.
Justice Edwards emphasized that “it would be grossly unfair to require a victim of sexual assault to provide an undertaking in damages where that Plaintiff has been entirely successful with her claim for damages.”
This decision by Justice Edwards lends support to winning plaintiffs (and also co-defendants with successful crossclaims) who choose to pursue a losing defendant who is not honouring a court award against them for damages arising out of sexual abuse.
In the right circumstances, a Mareva injunction can be an important tool used in aid of execution, to hold a perpetrator of sexual violence accountable, and to ensure justice for survivors.
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Vicarious Liability: Church Responsible For Sexual Abuse Of Children By Non-Employees Installed To Oversee Orphanage
The Newfoundland and Labrador Court of Appeal has further clarified the test for vicarious liability in circumstances where a conventional employment relationship does not exist between a wrongdoer and its principal.
In John Doe (G.E.B. #25) V. The Roman Catholic Episcopal Corporation Of St. John’s, 2020 NLCA 27, the Newfoundland and Labrador Court of Appeal has further clarified the test for vicarious liability in circumstances where a conventional employment relationship does not exist between a wrongdoer and its principal.
Briefly, the wrongdoer does not have to be an employee in the traditional sense: the total relationship of the parties is relevant to whether liability will be established. What is key to establishing vicarious liability is whether the principal was in a position to manage the risk posed by the conduct of the wrongdoer.
In this case, four boys living at Mount Cashel orphanage in St. John’s in the 1950s were sexually abused by five members of the Christian Brothers Institute Inc. (the “Brothers”). The Brothers were an organization tasked by the Roman Catholic Episcopal Corporation of St. John’s (the “Archdiocese”) with establishing and overseeing the orphanage. The orphanage was on property that was conveyed from a Bishop of the Archdiocese to the Brothers, in trust, for the express purpose of establishing an industrial home and orphanage. The conveyance provided that the property would revert to the Archdiocese if it ceased to be used for this purpose.
Operational funding for the orphanage came from several sources, including the Archdiocese. In 1999, the four boys claimed against the Archdiocese and the Brothers for damages resulting from the sexual abuse they suffered while living at the orphanage. The plaintiffs alleged that the Archdiocese was vicariously liable for the sexual abuse perpetrated by the Brothers as a result of the close relationship between the two organizations. The Archdiocese did not dispute that the sexual abuse had occurred. Instead, it argued that it was not vicariously liable for the actions of the Brothers.
In March 2018, Faour J. for the Supreme Court of Newfoundland and Labrador dismissed the plaintiffs’ claims against the Archdiocese because of a lack of evidence that there was a sufficiently close relationship between the Archdiocese and the Brothers to support a finding of vicarious liability. The plaintiffs appealed. The Court of Appeal of Newfoundland and Labrador, allowing the plaintiffs appeal, sets aside the trial judge’s decision, and determines that the Archdiocese is vicariously liable for the Brothers’ abuse.
The Court finds that the trial judge erred in his characterization of the doctrine of vicarious liability, particularly by limiting the doctrine to issues such as employment and control of day-to-day operations. By doing so, the trial judge misapplied the law to the facts at hand. The Court emphasizes the importance of considering all of the evidence, taken together, when determining whether vicarious liability is met in a case, and states that in this case, the trial judge failed to do so.
The Court lays out the well-established approach for determining whether a party is vicariously liable for the acts of a wrongdoer. First, a court must determine if any precedents conclusively decide the case. If so, the analysis ends. If no precedent exists, then a court must answer the following questions:
does a sufficiently close relationship exist between the wrongdoer and the principal as to make a claim for vicarious liability appropriate?
is the wrongful act of the wrongdoer sufficiently related to the conduct authorized by the principal to justify the imposition of vicarious liability?
If the answer to both is yes, then vicariously liability shall be imposed upon the principal.
When assessing the closeness of the relationship between the wrongdoer and the principal, the Court emphasizes that it is the total relationship between the parties that must be considered. A wrongdoer need not be an employee of the principal to impose vicarious liability on the principal. When assessing whether the wrongful act of the wrongdoer is sufficiently related to the conduct authorized by the principal, a court must consider whether the principal was in a position to manage the risk posed by the conduct of the wrongdoer.
In this case, the Court finds evidence to support the fact that the Archdiocese not only established the orphanage, but played an ongoing role in administering, servicing, operating, and financially supporting it. The Court is clear that the Archdiocese is not immunized from responsibility due to some internal structure of the Brothers – the “Archdiocese cannot simply install the Brothers and assign them work and then walk away, especially because the Archdiocese continued to exercise authority over the Brothers and take responsibility for the orphanage” (at para 90).
The Court makes clear in this case that an organization will be vicariously liable for the wrongful acts of a wrongdoer where a sufficiently close relationship exists between the wrongdoer and the organization and the wrongful acts are sufficiently related to the conduct authorized by the organization. It is not necessary that a wrongdoer be an employee of the organization in the traditional sense, but rather, it is the total relationship of the parties that will determine the proximity between the parties.
In the big picture, vicarious liability is a legal tool animated by twin policy objectives:
Fairly compensating victims; and
Deterring future harms.
It is applicable in cases where the principal has the power to shape the way the wrongdoer conducts its business or does their job. The power held by the principal, along with the control it may exert over the wrongdoer, is what underpins the fairness of allowing liability for behaviour the principal may not have known about and would not have approved.
By confirming that vicarious liability may be found outside the formal employment relationship, the Newfoundland and Labrador Court of Appeal speaks to the substance of this issue. Having found that the Archdiocese had the power to shape the way the Brothers operated the orphanage, the Court’s decision to impose vicarious liability supports the policy objectives of the vicarious liability doctrine.
The Archdiocese has applied to the Supreme Court of Canada for leave to appeal the Court’s decision.
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Lower Threshold For Proving Income Loss In Cases Involving Childhood Sexual Abuse And Injury
The Ontario Court of Appeal in its October 25, 2019 decision in MacLeod v. Marshall, 2019 ONCA 842 has clarified that when a minor is injured and later, in adulthood, sues for compensation, they need not prove their past loss of income on the usual balance of probabilities standard.
The Ontario Court of Appeal in its October 25, 2019 decision in MacLeod v. Marshall, 2019 ONCA 842 has clarified that when a minor is injured and later, in adulthood, sues for compensation, they need not prove their past loss of income on the usual balance of probabilities standard. Instead, because at the time of the incidents causing injury the plaintiff was too young to have an established pattern of earnings, the plaintiff need only prove their income loss on the standard of whether there was a “real and substantial possibility” that they would have achieved the claimed earnings but for the incidents.
This clarification of the law has particular application in the historical childhood sexual abuse context where adult plaintiffs seek compensation for harms and losses resulting from assaults perpetrated on them when they were minors. As it turns out, this was precisely what was at issue in the MacLeod v. Marshall case, which involved abuse by a priest against the plaintiff when he was only a child.
Since all income losses that were claimed occurred after the abuse, all such losses were hypothetical in the sense that they were earnings the plaintiff claimed he would have had if he had not been abused. The Court of Appeal therefore held they needed only to be proven on the lower standard of proof, “realistic and substantial possibility”.
The Court of Appeal explained that, once wrongdoing has been established, income loss is to be quantified based on the following analysis. First, consideration needs to be given to what economic opportunities the plaintiff might have had if not abused. Second, consideration needs to be given to what further income the plaintiff could have earned, if any, than what he or she actually earned. Third, the percentage chance that the plaintiff would indeed have earned that additional income, taking into account positive and negative contingencies, must be determined.
This clarification of the law by an appellate court is important because, for too long, plaintiffs in historical sexual assault cases have been met with the objection by defendants that their income loss claims are far too speculative to be recognized as legitimate. The defence argument is usually that, because they were so young when the abuse occurred, it cannot possibly be known what their career paths would have entailed without the abuse. Therefore, they should receive nothing for loss of income, or only a very modest amount to reflect a loss of opportunity or competitive advantage.
The Ontario Court of Appeal’s decision provides a principled basis on which to resist such arguments, but also guidance about the kind of evidence a plaintiff with a claim based on childhood incidents must put forward to succeed with respect to past loss of income. The fact the Court of Appeal in MacLeod v. Marshall declined to interfere with a jury award for combined past and future income loss of almost $1.6 million, gives further credence to the argument that income loss claims in the historical sexual abuse context are ones that deserve to be taken seriously. Defendants and insurers should expect to see many more such claims being advanced. Going forward, Plaintiffs will be less willing to compromise on these claims in the course of settlement negotiations.
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Sexual Abuse Cases: Who Pays The Legal Bills?
Elizabeth Grace explains that a sexual abuse plaintiff's legal costs associated with advancing his or her claim can be very significant, especially if the case goes all the way to trial.
A sexual abuse plaintiff's legal costs associated with advancing his or her claim can be very significant, especially if the case goes all the way to trial.
A recent decision of the Supreme Court of British Columbia (“B.C.”), Nixon v. Pickton, 2015 BCSC 1700, highlights the factors that a trial judge may consider in awarding, or refusing to award, costs to a successful plaintiff who has rejected an offer to settle from the defendant, but fails to “beat” that offer at trial.
This decision has attracted some media attention (see“Pickton not responsible for victim's full legal costs” on Findlaw.ca, and “B.C. judge says David Pickton sex-assault victim should have settled” in an article published in The Globe and Mail).
Normally, a successful party's legal costs must be paid by the party who loses at trial. However, to encourage parties to settle before trial, our rules of court include various incentives based on payment of legal costs – specifically, who is to pay, on what scale, and starting at what point in time.
In the B.C. case, David Pickton sexually assaulted the plaintiff in the early 1990s. He was convicted for the assault. Many years later, the plaintiff commenced a lawsuit against Pickton seeking approximately $1 million in damages. She alleged that amongst other injuries, the assault caused her pain and suffering and resulted in a loss of past and future earnings.
Six weeks before the trial was set to begin, Pickton offered to settle the lawsuit for $50,000. Approximately 90 minutes after the offer was made, the plaintiff's lawyer notified Pickton's lawyer that the offer was rejected. The case proceeded to trial before a jury.
The plaintiff faced a number of challenges at trial. The accuracy of her memory was attacked, as was her credibility. Pickton's lawyers argued that the many miseries the plaintiff had suffered in her life called into question whether the assault by Pickton had caused her injuries. The judge agreed, concluding at paragraph 11 of his ruling on costs that “Ms. Nixon appeared to me as a witness who was not dishonest, but as a witness whose memory, and therefore credibility, were ravaged by the exceptionally difficult life she has faced. Frankly, on any rational assessment, her dealings with Mr. Pickton in 1991 were only a small event by comparison with the miseries she faced in many other parts of her troubled life.” The plaintiff had alleged that Pickton had cornered her, groped her body, and threatened to rape her.
The jury found in the plaintiff's favour and awarded her $45,000 as damages, which was less than Pickton's offer to settle for $50,000.
In his cost analysis, the trial judge stated that “[t]he dominant fact against Ms. Nixon […] is that she refused an offer to settle which she ought reasonably to have accepted.”
The trial judge only awarded the plaintiff her legal costs up until the date of Pickton's offer to settle. The judge refused to award her costs for the period that followed his offer. Pickton requested that he be awarded his legal costs from the date that his offer was made through to the end of the trial. The judge refused his request, stating that the plaintiff was the successful party at trial, and it would be wrong to award any portion of the trial costs to Mr. Pickton. In short, the parties were each made to bear their own legal costs after the offer was made.
The practical consequence for this plaintiff was that she likely netted very little compensation, despite her success at trial, because she had to cover her lawyer's fees that accrued after she rejected Mr. Pickton's offer to settle. One question that arises is whether this same decision could also have been made in Ontario, where the legislative scheme differs from that of British Columbia.
Ontario's Victims' Bill of Rights, S.O. 1995, chapter 6, specifically addresses when a victim of crime sues convicted perpetrators of the crime. The preamble to the Victims' Bill of Rights states that victims should be treated with compassion and fairness and “the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.”
One provision intended to further these goals relates to legal costs. Section 4(6) states that when a judge orders costs in favour of a victim, those costs “shall” be made on a solicitor-client basis (now known as “substantial indemnity basis”), such as after a favourable outcome at trial, unless the judge considers that to do so would not be in the interests of justice. Where costs on a substantial indemnity basis are awarded, the successful party is able to recoup a much greater percentage of his or her legal costs incurred than when the costs are awarded on the lower scale, known as “partial indemnity” costs.
Section 4(6) reflects the guiding principles of the Victims' Bill of Rights, namely, that victims should be treated with compassion and fairness. In K.T. v. Vranich, 2011 ONSC 683, Justice Whitten stated at paragraph 29 of his reasons for judgment that “[t]hose principles dictate that the cost of litigation should not be borne by [a victim of sexual assault] who is only here by virtue of the intentional actions of [the perpetrator]. Actions in which he sought his own gratification at the expense of [the victim's] autonomy and dignity.”
Moreover, cost awards under section 4(6) of Ontario's Victims' Bill of Rights are not made only against the individual who committed the crime. Where an institutional defendant, such as the convicted defendant's employer, is found liable for its employee's wrongful conduct, section 4(6) will be triggered such that substantial indemnity costs will also be ordered against the institutional defendant (see Evans v. Sproule, 2008 CanLII 58428 (ONSC) at paragraph 138).
However, where a defendant makes an offer to settle before trial, that offer is rejected by the plaintiff, and the plaintiff obtains a result at trial that is less than the amount of the offer, it is unclear how section 4(6) of the Victims' Bill of Rights would interact with the costs regime under Ontario's Rules of Civil Procedure. While the rules relating to legal costs are discretionary and determined on a case-by-case basis, the Rules contemplate the scenario of a rejected offer. Pursuant to Rule 49.10(2), where the plaintiff rejects the defendant's offer and obtains a less favourable judgment than the offer, the defendant is entitled to receive its legal costs from the plaintiff starting from the date the offer was made.
Would that result conflict with the express language of the Victims' Bill of Rights? The answer may be no, especially if one favours a technical approach to the statutory language over one that puts the emphasis on the principles of compassion and fairness for victims of crime. Section 4(6) states: “A judge who makes an order for costs in favour of a victim shall make the order on a [substantial indemnity] basis, unless the judge considers that to do so would not be in the interests of justice.” This provision only applies where a judge makes an order for costs in favour of a victim. A decision that a plaintiff is not entitled to costs does not offend the language of section 4(6), which addresses the quantum of costs. Moreover, the Victims' Bill of Rights does not provide direction on when a judge should make an order for costs in favour of a victim. Finally, the Victims' Bill of Rights gives the judge residual discretion to do what they believe to be “in the interests of justice”.
Applying the Victims' Bill of Rights to the Pickton case provides an illustration of this hypothetical. There, the judge ruled that the plaintiff ought reasonably to have accepted the defendant's offer to settle. As she failed to so, the judge ruled that she was not entitled to her legal costs from the date that the offer was made through to the end of trial. The judge did not make an order for costs in her favour after the date the offer to settle was made, meaning that section 4(6) would not have been triggered. It is only after a judge has chosen to make an order for costs in favour of a victim that they are mandated to do so on a substantial indemnity basis, but a judge always has an overriding discretion to determine to whom and when they will award costs.
While the outcome in the B.C. case may not be at odds with section 4(6) of the Victims' Bill of Rights, there is nonetheless an argument to be made that it would offend the Act's underlying principles, namely that a victim of crime be treated with compassion, fairness, and that victims not be discouraged from participating in the justice process. Where a victim of a sexual crime reasonably believes that they are entitled to a higher quantum of compensation than a defendant has offered, the victim ought to be entitled to take the matter to trial without fear of being unable to recoup their legal costs. That said, victims who are plaintiffs in civil lawsuits would be well advised to objectively evaluate the strengths and weaknesses of their claims and give careful consideration to any offer to settle that is made by a defendant.
Elizabeth Grace is a civil sexual abuse lawyer in Toronto and has specialized in sexual assault matters for nearly two decades.
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