LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
Elizabeth Grace Mentioned In CBC News Article
Elizabeth Grace has been mentioned in a new article by CBC News regarding lawsuits dealing with sexual abuse of students by teachers.
WARNING: This article contains details of abuse
“They’re the ones who have the ability to make systemic changes, which is what most survivors want most of all.”
In a follow-up to our recent post about CBC’s investigative podcast “The Banned Teacher,” Elizabeth Grace has been mentioned in a new article by CBC News regarding lawsuits dealing with sexual abuse of students by teachers. Survivors of this abuse ultimately decided to file lawsuits when they were failed by police and the criminal courts, and Elizabeth talks about how she helps others in their pursuit for justice in the civil courts. Read the article here.
Elizabeth Grace and her team specialize in guiding survivors through the legal process with respect, sensitivity, and compassion, and they work to fearlessly pursue the vindication, accountability, and closure survivors deserve.
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 preliminary consultation.
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CBC Podcast Features Former Client
“The Banned Teacher” is a new podcast exposing a predator who preyed on female high school students for more than three decades, who was protected by our education system.
“The Banned Teacher” is a new podcast exposing a predator who preyed on female high school students for more than three decades, who was protected by our education system. Hosted by CBC reporter Julie Ireton, this 10- part series follows our former client Anne-Marie Robinson’s pursuit of justice, leading to an investigation that uncovered 15 other survivors of abuse by the same teacher, and raised important questions about the protection of young women in our society.
At Lerners, we have worked with many survivors of abuse committed by those in positions of power, and we have deep respect for their strength and courage. We are always moved when such a survivor decides that they are ready to share their story, inspire others to do the same, and advocate for change as Anne-Marie has done and continues to do. We admire Anne-Marie for her insight, selflessness and bravery, and we encourage everyone to listen.
The podcast can be accessed here: The Banned Teacher.
WARNING: This series contains graphic descriptions of sexual assault and abuse which may be triggering. Listener discretion is advised.
Elizabeth Grace and her team specialize in guiding survivors through the legal process with respect, sensitivity, and compassion, and they work to fearlessly pursue the vindication, accountability, and closure survivors deserve.
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 preliminary consultation.
Contact ELIZABETH Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
Erika Tower Speaks To CBC News About Civil Case Against CDSBEO And Ted Oliver
This is the third teacher from St. John Catholic High School since April 2021 that has been implicated in sexual abuse allegations against minors.
“It’s impacted her relationships, the way she views the world, [and] the way she views relationships between children and authority figures with suspicion.”
In a follow-up to our recent statement, Erika Tower, who is acting for a client in a civil case against both the Catholic District School Board of Eastern Ontario and Ted Oliver (a former teacher at St. John Catholic High School), seeking damages for sexual abuse, spoke to CBC News about the case.
This is the third teacher from St. John Catholic High School since April 2021 that has been implicated in sexual abuse allegations against minors.
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CBC Features Former Client
Elizabeth Grace has many clients who have survived abuse at the hands of those who are in positions of power over them.
We have many clients who have survived abuse at the hands of those who are in positions of power over them. We always admire the strength and resilience of our clients, and stand in awe when such a survivor feels strong enough, and safe enough to tell their story in their own words, as Anne-Marie Robinson has here: in this article and in this episode of The Current.
While Anne-Marie Robinson’s efforts to have Douglas Walker held accountable through the criminal justice system failed (as often happens), her civil suit, where she named both Douglas Walker and the Toronto District School Board as defendants, was successful. It was settled by the Toronto District School Board in August 2020.
The criminal system is focused narrowly on the accused person and whether a crime was committed, and, if a crime is proven beyond a reasonable doubt, on what constitutes appropriate punishment.
The civil justice system is different. A lower standard of proof than “beyond a reasonable doubt” applies, and in appropriate cases, it allows for a broader net to be cast for accountability purposes. In short, a civil suit allows for accountability not only from a perpetrator of sexualized wrongdoing, but also from an enabler of unlawful conduct, such as an employer or organization that placed the perpetrator in a position of power and trust over the survivor. It also provides survivors with compensation for the significant harms and losses they have suffered.
It was a genuine privilege to represent Anne-Marie Robinson in her successful civil lawsuit, and we are so proud to see that our former client has continued her work to empower other survivors by bravely and publicly telling her story of sexual exploitation and abuse by her former high school music teacher, Douglas Walker.
As Anne-Marie Robinson’s former lawyer, Elizabeth Grace, offers the following observation: “Anne-Marie is a remarkable woman. Her motivation has always been selfless. Going public as she has now done is her way of saying there is no shame in being a survivor and you are not alone. She is right. I am so pleased she has been able to connect with another brave survivor of former music teacher Douglas Walker, and that she herself is no longer alone.”
Anne-Marie has told her story, and spoken her truth. When asked about her legal team, at Lerners, she said, “I really enjoyed working with Elizabeth and her team. They were caring and compassionate and are leaders in the area of teacher on student sexual assault.”
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Our Lady Seat Of Wisdom Releases Report On Sexualized Misconduct Allegations
Elizabeth Grace and her team prepared a report on behalf of our client outlining findings from an independent investigation that examined allegations of sexualized misconduct against Uwe Lieflander, a former choir master and music professor at Our Lady Seat of Wisdom.
Elizabeth Grace and her team prepared a report on behalf of our client outlining findings from an independent investigation that examined allegations of sexualized misconduct against Uwe Lieflander, a former choir master and music professor at Our Lady Seat of Wisdom.
Our report showed that the allegations are true and further clarifies some important details regarding the timeline.
Head over to the Toronto Star for more insight into the case:
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SCC Won’t Hear Case Involving Vicarious Liability For Sex Assault
It’s unfortunate that the Supreme Court of Canada (SCC) will not hear a case dealing with whether to attach legal responsibility to a cab company when a driver engages in sexual misconduct against a passenger, says Toronto civil sexual abuse lawyer Elizabeth Grace.
It’s unfortunate that the Supreme Court of Canada (SCC) will not hear a case dealing with whether to attach legal responsibility to a cab company when a driver engages in sexual misconduct against a passenger, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.
“With the recent public attention being directed at the issue of sexual harassment and assault in workplaces, and other Commonwealth courts taking divergent approaches to vicarious liability, there was good reason to believe that the time was right for Canada’s top court to take a fresh look at the law of vicarious liability and how to apply it,” says Grace, a partner with Lerners LLP.
“In Canada, employers, organizations, insurers, those who have been subjected to sexual abuse, harassment or assault — and the lawyers acting for all these parties — would all stand to benefit from clarification about where the line should be drawn for and against vicarious liability in these times of heightened sensitivity and commitment to eradicating sexual misconduct,” she says.
Canadian Underwriter reports that a woman filed a civil lawsuit against a taxi company in 2015 after complaining that one of its drivers sexually assaulted her. The lawsuit also named the cab owner and driver, who was later found not guilty of sexual assault in a criminal trial.
The lawsuit against the cab company was dismissed in 2016 by the Ontario Superior Court of Justice, which rejected the plaintiff’s argument that the taxi company was vicariously liable, the article states. That ruling was upheld by the Court of Appeal for Ontario in 2017.
The plaintiff’s application for leave to appeal to the SCC was dismissed with costs on Feb. 1.
Grace, who was not involved in the taxi case but has more than 20 years of experience litigating sexual abuse cases, says plaintiff and defence lawyers practising in the sexual abuse, harassment and assault areas were keenly watching to see whether the SCC would take this opportunity to revisit the law.
She says it’s bound to come before the court again in some other context, noting the issue of vicarious liability for sexual assault has been considered by the SCC on approximately six occasions, the last time in 2005.
“Vicarious liability is a no-fault form of strict liability that came into prominence in Canada in the sexual abuse area in 1999, when the SCC heard two appeals that raised the question of whether an employer who is not negligent or otherwise at fault can still be held legally responsible for damages caused by the intentional sexual misconduct of its employee,” Grace says. “The top court released a ground-breaking decision on vicarious liability for employee sexual abuse in 1999.”
Relying on the principle of ‘enterprise risk,’ Grace says the court found that where an employee’s misconduct is closely tied to a risk that the employer’s enterprise has put into the community, principles of fair compensation and deterrence dictate that the employer be held vicariously liable for the harms caused by its employee, whether or not it knew or ought to have known the employee was harmful.
In that case, which involved a residential childcare facility, the SCC unanimously found in favour of vicarious liability attaching to the employer institution. However, in a companion case involving a children’s recreation club, Grace says the court was split when it applied the test for the imposition of vicarious liability laid down in the 1999 case.
“A narrow majority held that vicarious liability should not attach to the children’s club for the sexual abuse committed by its senior staff member against children who had participated in club activities,” she says.
The SCC’s 2004 decision that found a church organization vicariously liable for its clergy member’s sexual misconduct was also a legal “game changer,” Grace says.
“Residential children’s facilities and church organizations and their respective insurers, understanding that vicarious liability was almost certain to be imposed, became more amenable to streamlining claims, entertaining alternative dispute resolution processes, and settling cases,” she says.
Negligence is notoriously difficult for a plaintiff to prove and thus, she says, it plays a limited compensatory and deterrent role for sexual abuse.
“Yet we seem to be at an unprecedented crossroad. There is widespread recognition of the need to stop sexually predatory behaviours against those who are most vulnerable, including children and women,” Grace says. “There is also widespread acceptance that sexual abuse is prevalent not because of a few ‘bad apple’ individuals, but for systemic reasons.”
She says by capturing the enablers and facilitators of sexual abuse, such as employers and organizations that, albeit sometimes unwittingly, contribute to opportunities for sexual exploitation and abuse of vulnerable persons, vicarious liability offers a means of imposing legal accountability on those most able to prevent and stop sexual abuse.
“There are many outlier cases that do not fit neatly into the cases where vicarious liability is now accepted as applying,” she says. “The taxi case that the SCC declined to hear is just one illustration of such a case. As more and more victims of sexual abuse choose to turn to the civil justice system, rather than the criminal system, we can expect many more sexual abuse cases in which the limits of vicarious liability will be tested.”
This article originally appeared on AdvocateDaily.com.
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Vicarious Liability In Sexual Abuse Cases Lagging In Canada?
While the doctrine of vicarious liability is one of the more powerful legal tools to deter and prevent sexual misconduct because it targets employers and organizations, Canada is arguably falling behind other jurisdictions in its application.
While the doctrine of vicarious liability is one of the more powerful legal tools to deter and prevent sexual misconduct because it targets employers and organizations, Canada is arguably falling behind other jurisdictions in its application, says Toronto civil sexual abuse lawyer Elizabeth Grace.
This judge-made doctrine holds organizations accountable for both the negligent and intentional misconduct of their personnel. “It is meant to serve as a deterrent and to compel powerful entities to do more to stamp out sexual misconduct,” says Grace, partner with Lerners LLP.
“Employers and organizations can indirectly facilitate sexual abuse by conferring power and authority on their personnel which, if unchecked, can be misused to harm vulnerable parties. Vicarious liability makes these entities responsible for compensating victims and thereby provides a strong incentive on them to implement measures to discourage this type of wrongful behaviour,” she tells AdvocateDaily.com.
Grace notes Canada was on the leading edge in this area back in 1999 when the Supreme Court of Canada (SCC) advanced the common law to allow for vicarious liability — a no-fault form of strict liability — to attach to employers. The matter involved a claim for damages against a non-profit organization that ran a residential care facility for troubled children based on sexual assaults committed by one of its employees. The plaintiff sought damages on the basis that the organization should be held vicariously liable for the damages caused by its employee.
“Since then, we’ve fallen behind other jurisdictions,” Grace says, pointing to two 2003 SCC decisions involving appellants who suffered abuse in foster homes. In those cases, the SCC found there was no vicarious liability that attached to the public entity in charge of child welfare based on abuse children in foster care had suffered at the hands of their foster parents, Grace says.
“Canada’s top court ruled it was not going to hold the government vicariously liable for misconduct by foster parents against their foster children. But the United Kingdom’s top court recently found a local authority was vicariously liable in a case of foster parent abuse. Likewise, the New Zealand Court of Appeal has found vicarious liability in similar circumstances,” Grace says.
There are contexts in Canada where there is clearly established vicarious liability, such as with clergy sexual misconduct, but Grace says there are other contexts in which Canadian courts have ruled both ways, such as where sexual abuse has been committed against students by school personnel, including teachers.
Grace characterizes a 2017 Ontario Court of Appeal (OCA) decision involving a taxi driver who sexually assaulted his female passenger as “troubling” for the evolution of vicarious liability in Canada.
According to court documents, the plaintiff was at a party late one evening, intoxicated and feeling unwell. A friend called a taxi company to dispatch a taxi to drive her home. The taxi arrived, and the plaintiff alleged that she was sexually assaulted by its driver. The plaintiff sued the driver and the taxi company for damages, claiming the company was vicariously liable for the misconduct of its driver.
The OCA found the taxi company was not vicariously liable and the SCC denied leave to appeal.
“In this era of #MeToo and heightened concern about the prevalence of sexual harassment and sexual assault and the serious harms these cause, we need our courts to grapple with how to extend, not limit, vicarious liability because it is truly one of the best legal tools at our disposal,” Grace says.
“We have to use the law to stop the pervasive problem of sexual abuse and target the more powerful entities in society who can make a real difference,” Grace adds. “I fear Canada may be falling behind other Commonwealth jurisdictions when it comes to applying vicarious liability to sexual abuse committed in novel contexts. We need this form of legal liability to evolve and be used as a tool to reduce instances of sexual misconduct.”
This article originally appeared on AdvocateDaily.com
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Trends In Civil Sexual Abuse Awards: Part 2
In the second instalment of a miniseries on advancing damages in sexual assault cases, Toronto civil sexual abuse lawyer Elizabeth Grace discusses developments in awards for historical childhood abuse.
In the second instalment of a miniseries on advancing damages in sexual assault cases, Toronto civil sexual abuse lawyer Elizabeth Grace discusses developments in awards for historical childhood abuse.
The award ranges for pain and suffering awards in historical childhood sexual abuse cases are steadily climbing, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.
“These inflation-adjusted non-pecuniary ranges act as benchmarks,” says Grace, who has been practising in the area of sexual abuse and misconduct for 25 years. “What I have noticed lately is that defence counsel are starting to acknowledge this.”
She points to a 2004 Ontario Superior Court of Justice matter involving three brothers who had been abused by their former priest. Justice John Kerr found the abuse justified awards at the upper end of the scale and noted the damages suggested by the defence did not “reflect the present-day level of awards for compensation for the effects of sexual assault on individuals in their formative years.”
Grace, partner with Lerners LLP, says the range for childhood sexual abuse for non-pecuniary damages identified in this 2004 decision works out to be approximately $159,000 to $319,000 when adjusted for inflation.
“Fourteen years later, a 2018 case involving a teacher sexually abusing a child provides an even bigger range,” she says.
In that matter, an action was brought by an adult plaintiff against his teacher and the school board for childhood sexual abuse. The plaintiff — who suffers from major depression with dysthymia, post-traumatic stress disorder, substance abuse, and personality disorder of the antisocial and borderline type — alleged that these serious mental health issues and injuries were a result of the sexual abuse perpetrated on him by the defendant.
Grace, who was not involved in the matter and comments generally, says the judge found the inflation-adjusted range of non-pecuniary damages for childhood sexual abuse cases to be $56,000 to $371,000.
“$371,000 is now the high-water mark accepted by our courts,” notes Grace.
Justice Helen MacLeod-Beliveau found the impact of the sexual abuse on the plaintiff was severe and assessed the total damages at $250,000 for general non-pecuniary and aggravated damages. She also awarded $135,587 for future loss of an interdependent relationship.
Grace notes the validation of the future loss of interdependent relationship claim is significant.
“This pecuniary claim recognizes the loss of the ability to form and sustain an interdependent domestic relationship. This is a loss that can be measured and can cause economic hardship because two can live more cheaply than one. It’s recognized that there are efficiencies to living as a couple.”
“Years ago when I started in the sexual abuse area, there was this new loss of interdependency head of damages, and I thought, ‘Wow, this has application to the sexual abuse context.’ Fundamentally, you have people who have suffered a deeply personal wrong, and their trust has been broken. They often have difficulty forming relationships after the abuse. There are intimacy issues, and they will often have flashbacks to the abuse they suffered. This becomes a real problem when forming or maintaining relationships.”
She says it was refreshing to read that the court had found the category of pecuniary loss did apply in this childhood sexual abuse case.
“The decision breathes new life into this category of damages. The court recognized the plaintiff had failed marriages and accepted that there is a real possibility that he’s not going to form another relationship in his remaining years because of the abuse he suffered as a child.”
This article originally appeared on AdvocateDaily.com
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Trends In Civil Sexual Abuse Awards: Part 1
In the first installment of a two-part series on advancing damages in sexual assault claims, Toronto civil sexual abuse lawyer Elizabeth Grace discusses how one recent decision has increased the range for non-pecuniary damages in single incident adult female cases.
In the first installment of a two-part series on advancing damages in sexual assault claims, Toronto civil sexual abuse lawyer Elizabeth Grace discusses how one recent decision has increased the range for non-pecuniary damages in single incident adult female cases.
In an area of law where the significant harms caused by sexual assault and misconduct have been chronically undervalued, a recent Ontario Court of Appeal decision is “significant,” says Toronto civil sexual abuse lawyer Elizabeth Grace.
“There are many reasons why civil sexual assault damages have been historically undervalued,” says Grace, partner with Lerners LLP. “Often there are psychological harms that are ‘invisible’ or perceived as intangible and, as a result, are valued as being lesser.”
There is also complexity around sexual assault victims — with some people having been assaulted before or after the abuse in question — which tends to drive awards down, she tells AdvocateDaily.com.
“Sometimes a person suffered trauma before the main assault and so they had pre-existing problems. If there were prior incidents of abuse or neglect, the defence’s position is that the victim was already compromised, and they only need to be restored to where they would have been without the abuse in question,” Grace says.
She adds, “Victims of abuse will often go on to have troubled lives and suffer further traumas, assaults or have problems with the law. That is frequently a point of contention. Were those subsequent problems caused by the assault in question or were they independent and unrelated?”
Grace says despite these factors often driving down awards and settlements, a 2018 Ontario Court of Appeal decision that addresses the range of appropriate non-pecuniary damages for a single incident of sexual assault against an adult woman brings some needed clarity to the law.
The case involved a female physician who was assaulted by a male colleague in her home. They were both married and co-workers at an Ontario hospital. The sexual assault reportedly consisted of one incident when the man, under the pretext of visiting the woman’s home on an urgent matter, removed his shirt and then, in the bathroom, the rest of his clothes.
Returning to the room, he tripped his female colleague, thrust his erect penis into her face, pulled down her pants and penetrated her vagina. He rolled off after she screamed, and, as she was leaving the room, she saw him masturbate and ejaculate onto the rug, the decision states.
“The defence argued that this type of case is worth $20,000 to $50,000 when parties are essentially equal in terms of power dynamics, and there’s no evidence of long-lasting harm,” says Grace, who was not involved in the matter and comments generally.
The trial judge disagreed and awarded the plaintiff $175,000 for general and aggravated (non-pecuniary) damages. On appeal, the province’s top court affirmed this award, finding that sexual assault is unique and its “humiliating and degrading nature” would justify such an award in circumstances like this.
“The Court of Appeal in its reasons affirmed that the range of non-pecuniary damages in a single incident sexual assault against an adult woman is $144,000 to $290,000,” Grace says. “Those are not the damages you can calculate with precision, such as loss of income or the cost of therapy. Rather, these are damages that compensate for pain and suffering and the loss of enjoyment of life.”
“For victims of sexual assault, the category of non-pecuniary damages has always been a critical part of the compensation awarded. This is why the Court of Appeal’s decision is so important. It will guide lawyers acting on both sides of these cases when they are valuing claims,” she says. “And, of course, this range will have to be adjusted upward to account for inflation in the years to come.”
Stay tuned for part two where Grace will explore damages in childhood sexual abuse cases.
This article originally appeared on AdvocateDaily.com
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Punitive Damages Awarded In Revenge Porn Case
A recent civil case where the court awarded $100,000 in general, aggravated and punitive damages to a victim of “revenge porn” is a significant advancement of the common law.
A recent civil case where the court awarded $100,000 in general, aggravated and punitive damages to a victim of “revenge porn” is a significant advancement of the common law, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.
The Ontario Superior Court of Justice matter involved the plaintiff who was seeking a default judgment against her former boyfriend for damages arising from his abusive behaviour towards her and his posting — without her knowledge and consent — of a sexually explicit video of her on a pornographic internet website.
“This case involved physical assault against an intimate partner,” says Grace, partner with Lerners LLP. In addition, “the plaintiff’s ex-boyfriend and father of her child posted a sexually explicit video on a pornographic website. Her face was visible in the video while his was not, and he allegedly did it as payback because she reported his violence to the police.”
“While she consented at the time to the video being made, she did not consent to its public disclosure to others. By the time she learned about the video being posted online, at least two years had passed, and it was viewed more than 60,000 times, linked to 10 different websites and downloaded who knows many times,” Grace says.
“This was devastating to her, and she was haunted by the fear that others would see it, including her child,” she adds.
While Manitoba has the Intimate Image Protection Act and Saskatchewan, Alberta and Newfoundland have tabled revenge porn laws, there is no similar statute in Ontario, Grace says.
“What the court has done is use judge-made law to provide a remedy for acts of online harassment including revenge porn through the creation of the tort of public disclosure of private facts without consent,” she notes.
In her judgment, Justice Sally Gomery wrote: “A strength of the common law is its ability to evolve and adapt to changing circumstances.”
Her decision noted that the tort of public disclosure of private facts has existed in U.S. law for decades.
“Despite its vintage, it is well-suited for use in the context of internet posting and distribution of intimate and sexually explicit images and recordings. It is the cousin to another privacy tort already recognized in Ontario, intrusion on seclusion,” Gomery wrote. “As such, it is an appropriate, proportionate legal response to a growing problem enabled by new technology.”
Grace, who was not involved in the matter and comments generally, says another interesting aspect of the case was that the plaintiff received a separate award of damages for the breach of privacy she suffered.
“This case was against an individual, not an institution — so it’s significant. We’re not dealing with someone who is wealthy, yet the court awarded $75,000 for general and aggravated damages, plus $25,000 as punitive damages.” These amounts were, Grace stresses, “on top of the $20,000 awarded in general damages for the physical and verbal assaults the plaintiff had endured.”
The role of “punishing” people is often left to the criminal courts, Grace notes.
“In the sexual abuse area, civil courts will sometimes award punitive damages. In this case, the defendant had already been criminally convicted for his physical assaults, which is usually a reason why a civil court won’t award punitive damages,” Grace says. “But here, the court saw fit to award punitive damages for a wrong that had gone unpunished by the criminal court — the defendant’s revenge porn.”
This article originally appeared on AdvocateDaily.com
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