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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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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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Canada’s Highest Court Delivers Wake-Up Call On Child Sexual Abuse: UPDATED
The Supreme Court of Canada has spoken out about the pervasiveness of child sexual abuse and the profound harms it causes, and has implored those involved in the justice system to treat this problem with more care and sensitivity.
The Supreme Court of Canada has spoken out about the pervasiveness of child sexual abuse and the profound harms it causes, and has implored those involved in the justice system to treat this problem with more care and sensitivity. In R. v. Friesen, 2020 SCC 9, a case involving a young victim of sexual offences, our highest court took the opportunity to deliver a wake-up call that extends beyond criminal law to other areas of the law.
As my interest lies with the civil justice system and how it responds to sexual violence against children and other vulnerable persons, I want to speak to why and how R. v. Friesen is relevant to liability and damages in civil cases involving sexualized abuse and misconduct.
The Supreme Court opened its landmark 9-0 decision by stating the obvious: “Children are the future of our country and our communities.” It went on to say it is “send[ing] a strong message” that:
…sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.
These powerful opening words have resonance in the civil context too. The claims (or causes of action) and the compensation (or monetary damages) assessment principles that are the bases for civil liability, must similarly be interpreted and applied in ways that reflect the wrongfulness of the sexual exploitation and violation of children, and the profound and often lifelong harms caused by this wrong.
We recently saw an example of such an approach in the Ontario Court of Appeal’s decision in MacLeod v. Marshall, 2019 O.N.C.A. 842 (CanLII) – see my earlier post on this case entitled “Lower Threshold for Proving Income Losses in Cases Involving Childhood Sexual Abuse and Injury.” In that case, the Court of Appeal clarified that principles for determining loss of income in historic child sexual abuse cases need to be adapted to the unique circumstances facing a victim whose harms were caused before they had finished school and/or started working. The Court of Appeal affirmed that the usual standard of proof – a balance of probabilities – is too harsh where the victim had not yet had the opportunity to start earning income. Instead, it favoured using the lower standard of “chance” or “real or substantial probability.” Thus, in a civil lawsuit involving childhood sexual abuse, this lower standard of proof applies when assessing both past and future loss of income.
This is precisely the kind of adaptation of the law that the Supreme Court of Canada’s decision in R. v. Friesen telegraphs as necessary if we are to recognize and validate the inherent wrongfulness and harmfulness of sexual violence against children. Of note, on April 30, 2020, the Supreme Court of Canada dismissed the application for leave to appeal that was brought by the unsuccessful defendant religious organization in MacLeod v. Marshall. This means the Court of Appeal’s ruling on how to approach loss of income in a historic childhood sexual abuse case is now the law in Ontario, and a highly persuasive legal authority in the rest of Canada.
While the criminal justice system is focussed on punishing individual offenders, the civil justice system has a special role in providing accountability and redress that extends beyond the individual perpetrator to others responsible for the wrongs and/or harms. The civil justice system is uniquely placed to make those who enable or empower (wittingly or not) perpetrators of child sexual abuse legally accountable. By casting the net of accountability and responsibility more widely and being prepared to do so in ever more insightful and reflective ways, the civil justice system can do its part in responding to the Supreme Court of Canada’s call to action on child sexual violence in R. v. Friesen.
There are many “take-aways” from the landmark decision in R. v. Friesen, and what I have done below is distill what the Supreme Court of Canada has said that, in my view, has direct or indirect application to civil sexualized misconduct and abuse cases.
The courts are seeing more cases involving sexual violence against children.
New technologies like the internet are enabling new forms of sexual violence against children, and providing perpetrators with new ways to access and control youth. These technologies are also making qualitative changes to these sexual offences; for example, the online distribution of images repeats the original violation by making its victim live with the knowledge that others may be accessing these images in the future.
Just as legislators have been recognizing, adapting and trying to keep pace with developments in child sexual abuse, “[c]ourts too have been on a ‘learning curve’ to understand both the extent and the effects of sexual violence against children”. The law has had to and will continue to evolve to respond to its prevalence, and to the different manifestations of the wrong and harms it causes.
The wrongful nature of child sexual abuse stems from the fact it represents a simultaneous invasion of a child’s personal autonomy, a violation of the child’s bodily and sexual integrity, and an attack on the child’s dignity and equality.
“Violence is always inherent in the act of applying force of a sexual nature to a child.” Whether or not there is additional physical violence and/or physical injuries that accompany such abuse, any physical contact of a sexual nature with a child is, the Supreme Court has said, “a wrongful act of physical and psychological violence.”
The attack on personal autonomy, bodily integrity, sexual integrity, dignity and equality that sexual abuse against a child represents means courts must consider the resulting psychological harm which will often be more pervasive and permanent than physical harm.
Beyond the life altering consequences that flow to those who are targeted, sexual violence against children has ripple effects, including harm to people who are close to these children and harm to relationships. There is also harm to the broader communities in which the targeted children live, as well as to society as a whole:
Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering … [C]hildren who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood … Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community.
Courts must impose sentences – and I would add, damages awards – that are commensurate with the gravity of sexual offences against children.
It is not sufficient for courts to simply state that sexual offences against children are serious….courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences.
Sexual violence against children “inherently has the potential to cause several recognized forms of harm”. These are harms that manifest themselves:
During childhood, such as self-destructive behaviours, acting out, guilty feelings and shame, lack of trust, low self esteem, inability to concentrate in school, running away from home, sleep disturbances and nightmares, anxiety, and depression; and
During the victim’s adult years, such as difficulty forming loving and caring relationships with others, being prone to engage in sexual violence against children themselves, and struggling with substance abuse, mental illness, PTSD (post-traumatic stress disorder), eating disorders, suicidal ideation, self-harming behaviours, anxiety, depression, sleep disturbances, anger and poor self esteem.
The Supreme Court warned that lower courts must reject the belief there is no serious harm if there was no additional physical violence that caused actual physical injury. It also warned against the tendency to downplay the wrongfulness of child sexual abuse or its harm to the victim where the acts did not involve penetration, fellatio or cunnilingus, but instead involved touching or masturbation. The notion that the latter kinds of sexual touching are “relatively benign” and thus inherently less harmful is, the Supreme Court said, “a myth that must be rejected.” Why? Because it does not provide any meaningful insight into how the actions were experienced by the targeted child.
[C]ourts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale… This is an error — there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. As the Ontario Court of Appeal recognized in Stuckless (2019), physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration… Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. For instance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than an act of fellatio, cunnilingus, or penetration. [emphasis added]
The Supreme Court has reminded us that words matter, including those used by courts when they deal with child sexual abuse. Use of terms like “fondling” or “caressing” must stop. This is because they implicitly characterize the perpetrator’s conduct as erotic or affectionate, instead of inherently violent. Language like this is misleading and risks normalizing the very conduct that is being scrutinized and condemned.
In cases where the target of sexual abuse is too young or otherwise unable or unavailable to provide direct evidence of the actual harm suffered, courts may nonetheless find actual harm based on factors such as breach of trust, grooming, multiple instances of sexual violence, and the young age of the child. The Supreme Court stressed that direct evidence from children or their caregivers is not required for a court to find that children have suffered actual harm as a result of sexual violence.
Sexual interference with a child should not be treated as less serious than sexual assault against an adult, and sexual offences against children should generally be punished more severely than the same offences against adults. I would argue this differentiation has already been recognized in the civil context. Damages awarded to victims of child sexual abuse will usually exceed those awarded to adult victims. Whereas the upper range of general damages in child sexual abuse cases can exceed $385,000 (M. v. Marson, 2018 ONSC 3493 (CanLII)), the upper end of such damages where an adult is targeted is more in the range of $300,000 (Zando v. Ali, 2018 ONCA 680 (CanLII), aff’g 2017 ONSC 1289). For more on these kinds of awards, see my posts “Trends in civil sexual abuse awards, Part 1 and Part 2.”
A child victim’s “participation” in sexual activity is not de facto consent and should never be treated as a mitigating factor. The Supreme Court’s clear directive that such participation is not a legally relevant consideration at sentencing should, I would argue, apply equally to damages in civil sexual abuse cases. The Supreme Court appropriately acknowledged that “Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality.” It warned that a victim’s participation should not distract from the harm suffered, and moreover that the absence of additional overt violence, such as weapons, intimidation and physical injury, does not mean the inherent violence of the sexual abuse of the child should be ignored or downplayed.
Departure from prior precedents, be it from sentencing ranges, and I would add from civil damages awards, may be required to ensure a proportionate punishment and remedy are imposed and granted. The Supreme Court warned that not only should courts be cautious about relying on dated precedents that do not reflect current awareness of the impact of sexual abuse on children, but more recent precedents must also be treated with caution if they simply follow dated precedents. This warning by our top court rings equally true in the civil as in the criminal context.
While protection of children is one of the most fundamental values of Canadian society, the Supreme Court of Canada observed that sexual violence against this vulnerable group “turns this value on its head.” R. v. Friesen is a refreshingly insightful and reflective decision by our highest court that debunks myths and stereotypes and warns about falling prey to common or outdated misconceptions. The Court provides clear direction about how our justice system needs to approach the tragic cases involving child sexual abuse that too often come before it. The Court’s warnings and guidance transcend criminal law and should inform all of the legal contexts in which sexual violence against children arise, including the civil context. R. v. Friesen truly reflects a wake-up call for every one of us.
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Pre-Judgment Interest Developments In The Historical Sexual Abuse Context
Pre-judgment interest (“PJI”) on damages in historical sexual abuse cases involving plaintiffs who seek compensation for wrongs perpetrated against them years and sometimes decades earlier has long been a contentious issue. At what point in time should interest start to accrue, and at what rate?
Pre-judgment interest (“PJI”) on damages in historical sexual abuse cases involving plaintiffs who seek compensation for wrongs perpetrated against them years and sometimes decades earlier has long been a contentious issue. At what point in time should interest start to accrue, and at what rate?
Two recent Ontario court decisions involving adult plaintiffs suing for childhood sexual assault offer answers to these two sometimes vexing questions.
In L.R. v. S.P., 2019 ONSC 1737, the trial judge considered the different approaches that courts have used in the past to determine when a cause of action arises, and thus, when PJI should start to run. These approaches yield different starting points for the calculation of interest which, in a historical claim, can yield hugely discrepant amounts. For example, if the date of the abuse is used, then the interest will be far greater than if the date the action was started is used.
The court in L.R. v. S.P. acknowledged that the date when a claim is reasonably discoverable – i.e., when the plaintiff was reasonably capable of discovering the wrongful nature of the defendant’s conduct and that this misconduct caused harm – is the most common approach for determining when the cause of action arose. The presumption in sexual abuse cases is that this discovery by the plaintiff does not usually happen until the plaintiff receives some sort of therapy or treatment, although this presumption can be rebutted by case-specific circumstances that support a different date (earlier or later).
Once the date for calculating interest is determined, the interest rate for calculating PJI must be decided. In a historical sexual abuse case, where interest may run for potentially decades, the rate of interest can make a significant difference to the outcome. Sections 127 and 128 of the Ontario Courts of Justice Act define what constitutes the PJI rate and how it is to be calculated. For non-pecuniary loss claims for personal injury (i.e., general and aggravated damages), Rule 53.10 of the Rules of Civil Procedure in Ontario fixes the default PJI rate at 5% per year.
However, s. 130(1) of the Courts of Justice Act gives the court a wide discretionary berth to deviate, where it considers it just to do so, from awarding the interest otherwise calculable and owing by operation of ss. 127 and 128 of and Rule 53.10. Where a court does deviate, it must take into account the various considerations set out in s. 130(2) of the Courts of Justice Act, including changes in market interest rates and the circumstances of the case, among a myriad of other factors.
The Ontario Court of Appeal in MacLeod v. Marshall, 2019 ONCA 842, a historical clergy sexual abuse case, recently allowed an appeal from the trial judge’s award of PJI on non-pecuniary damages at the rate of 5% as prescribed by Rule 53.10, finding that the rate of 1.3% should have been used instead based on much lower market interest rates during the relevant time period.
Since interest rates have varied significantly over time, with a high of over 13% in 1990 to a low of 0.5% during parts of 2009 and 2010, one can expect to see much closer attention being given to dates and rates for the calculation of PJI in historical sexual assault cases. Arguments that rates should be lowered from, for example, the default 5% rate prescribed by Rule 53.10, are likely to be met with arguments that the date from which interest should be calculated is not when notice of the claim was given, but rather, a much earlier date when the plaintiff, either through independent means or with assistance from others, connected the wrong to the harms. Where the plaintiff disclosed the abuse to the wrongdoer, to an organization or employer associated with the wrongdoer, to authorities such as police, or to third parties like a doctor or therapist, then there will be evidence of an earlier date when the cause of action arose.
Lawyers for plaintiffs and defendants alike need to give these arguments careful consideration before deciding what course to pursue in terms of date and rate for PJI because the implications for their respective clients can be significant.
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Lower Threshold For Proving Income Loss In Cases Involving Childhood Sexual Abuse And Injury
The Ontario Court of Appeal in its October 25, 2019 decision in MacLeod v. Marshall, 2019 ONCA 842 has clarified that when a minor is injured and later, in adulthood, sues for compensation, they need not prove their past loss of income on the usual balance of probabilities standard.
The Ontario Court of Appeal in its October 25, 2019 decision in MacLeod v. Marshall, 2019 ONCA 842 has clarified that when a minor is injured and later, in adulthood, sues for compensation, they need not prove their past loss of income on the usual balance of probabilities standard. Instead, because at the time of the incidents causing injury the plaintiff was too young to have an established pattern of earnings, the plaintiff need only prove their income loss on the standard of whether there was a “real and substantial possibility” that they would have achieved the claimed earnings but for the incidents.
This clarification of the law has particular application in the historical childhood sexual abuse context where adult plaintiffs seek compensation for harms and losses resulting from assaults perpetrated on them when they were minors. As it turns out, this was precisely what was at issue in the MacLeod v. Marshall case, which involved abuse by a priest against the plaintiff when he was only a child.
Since all income losses that were claimed occurred after the abuse, all such losses were hypothetical in the sense that they were earnings the plaintiff claimed he would have had if he had not been abused. The Court of Appeal therefore held they needed only to be proven on the lower standard of proof, “realistic and substantial possibility”.
The Court of Appeal explained that, once wrongdoing has been established, income loss is to be quantified based on the following analysis. First, consideration needs to be given to what economic opportunities the plaintiff might have had if not abused. Second, consideration needs to be given to what further income the plaintiff could have earned, if any, than what he or she actually earned. Third, the percentage chance that the plaintiff would indeed have earned that additional income, taking into account positive and negative contingencies, must be determined.
This clarification of the law by an appellate court is important because, for too long, plaintiffs in historical sexual assault cases have been met with the objection by defendants that their income loss claims are far too speculative to be recognized as legitimate. The defence argument is usually that, because they were so young when the abuse occurred, it cannot possibly be known what their career paths would have entailed without the abuse. Therefore, they should receive nothing for loss of income, or only a very modest amount to reflect a loss of opportunity or competitive advantage.
The Ontario Court of Appeal’s decision provides a principled basis on which to resist such arguments, but also guidance about the kind of evidence a plaintiff with a claim based on childhood incidents must put forward to succeed with respect to past loss of income. The fact the Court of Appeal in MacLeod v. Marshall declined to interfere with a jury award for combined past and future income loss of almost $1.6 million, gives further credence to the argument that income loss claims in the historical sexual abuse context are ones that deserve to be taken seriously. Defendants and insurers should expect to see many more such claims being advanced. Going forward, Plaintiffs will be less willing to compromise on these claims in the course of settlement negotiations.
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Landmark Ruling in Sexual Assault – Ontario Court Confirms No ‘Cap’ On Damages For Pain and Suffering
It has long been recognized that the policy reasons for a ‘cap’ in catastrophic personal injury cases that result from accidents and negligent conduct simply do not apply to intentional misconduct like sexual assault, which is a distinctive wrong that causes unique harms and injuries.
Concluding the sexual abuse and its impacts were “at the upper end of the worst-case scale,” an Ontario court has awarded a plaintiff $400,000 for non-pecuniary damages: D.S. v. Quesnelle, 2019 ONSC 3230. From ages 5 to 10, the plaintiff had endured horrendous weekly sexual assaults by his stepfather.
In making this award for pain and suffering, the court expressly chose not to be restricted by the ‘cap’ on non-pecuniary damages that the Supreme Court of Canada in its 1978 trilogy of decisions said should apply in catastrophic personal injury cases. This cap was set at $100,000 in 1978, but adjusted for inflation, it amounts to $368,000 in 2019 dollars.
It has long been recognized that the policy reasons for a ‘cap’ in catastrophic personal injury cases that result from accidents and negligent conduct simply do not apply to intentional misconduct like sexual assault, which is a distinctive wrong that causes unique harms and injuries. Unlike other unlawful conduct, sexual assault is a targeted and inherently violent form of abuse of power that humiliates, degrades and violates the dignity of those who experience it.
Notwithstanding its decision to introduce a ‘cap’ into Canadian law, the Supreme Court of Canada has accepted that there are circumstances in which it will not apply. For example, in the defamation context, there is no arbitrary limit on what a person who has suffered damage to reputation and dignity may be awarded as non-pecuniary damages: Hill v. Scientology of Toronto, [1995] 2 S.C.R. 1130.
In 1996, the British Columbia Court of Appeal extended the exception to a case of incest by a father against his daughter, finding the policy justifications for the ‘cap’ simply did not apply: S.F. v. F.G.C., 1996 CanLII 6597 (B.C.C.A.). Unlike with catastrophic personal injury, there is little risk that a plaintiff, who has been sexually assaulted and suffered devastating psychological harms as a result, will be ‘overcompensated’ because of already generous awards under pecuniary heads of damage, such as loss of earning capacity or cost of care, that are intended to provide lifetime economic security. Nor are awards in sexual assault cases ones that could negatively impact the public purse or cause enormous increases in insurance premiums, both concerns that informed the Supreme Court of Canada’s decision to introduce a ‘cap’ on non-pecuniary damages for personal injury.
And yet it took more than two decades for an Ontario court to address the appropriateness of the ‘cap’ in the sexual abuse context. With the release of the decision in D.S. v. Quesnelle, we now have in Ontario an unequivocal statement that the ‘cap’ should not constrain damages for pain and suffering for sexual abuse, and an award that actually exceeds the amount of the cap. This is consistent with the trend towards greater recognition by society and by our courts of the depth of the harms caused by sexual violation and exploitation. While the claim in D.S. v. Quesnelle was undefended, the court’s decision should help pave the way for awards that reflect the full extent of the wrongs perpetrated and their consequences on individual survivors of sexual abuse. Courts need not feel artificially constrained by precedents that have either explicitly or implicitly been informed by the ‘cap’, or by the ‘cap’ itself.
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Vicarious Liability In Sexual Abuse Cases Lagging In Canada?
While the doctrine of vicarious liability is one of the more powerful legal tools to deter and prevent sexual misconduct because it targets employers and organizations, Canada is arguably falling behind other jurisdictions in its application.
While the doctrine of vicarious liability is one of the more powerful legal tools to deter and prevent sexual misconduct because it targets employers and organizations, Canada is arguably falling behind other jurisdictions in its application, says Toronto civil sexual abuse lawyer Elizabeth Grace.
This judge-made doctrine holds organizations accountable for both the negligent and intentional misconduct of their personnel. “It is meant to serve as a deterrent and to compel powerful entities to do more to stamp out sexual misconduct,” says Grace, partner with Lerners LLP.
“Employers and organizations can indirectly facilitate sexual abuse by conferring power and authority on their personnel which, if unchecked, can be misused to harm vulnerable parties. Vicarious liability makes these entities responsible for compensating victims and thereby provides a strong incentive on them to implement measures to discourage this type of wrongful behaviour,” she tells AdvocateDaily.com.
Grace notes Canada was on the leading edge in this area back in 1999 when the Supreme Court of Canada (SCC) advanced the common law to allow for vicarious liability — a no-fault form of strict liability — to attach to employers. The matter involved a claim for damages against a non-profit organization that ran a residential care facility for troubled children based on sexual assaults committed by one of its employees. The plaintiff sought damages on the basis that the organization should be held vicariously liable for the damages caused by its employee.
“Since then, we’ve fallen behind other jurisdictions,” Grace says, pointing to two 2003 SCC decisions involving appellants who suffered abuse in foster homes. In those cases, the SCC found there was no vicarious liability that attached to the public entity in charge of child welfare based on abuse children in foster care had suffered at the hands of their foster parents, Grace says.
“Canada’s top court ruled it was not going to hold the government vicariously liable for misconduct by foster parents against their foster children. But the United Kingdom’s top court recently found a local authority was vicariously liable in a case of foster parent abuse. Likewise, the New Zealand Court of Appeal has found vicarious liability in similar circumstances,” Grace says.
There are contexts in Canada where there is clearly established vicarious liability, such as with clergy sexual misconduct, but Grace says there are other contexts in which Canadian courts have ruled both ways, such as where sexual abuse has been committed against students by school personnel, including teachers.
Grace characterizes a 2017 Ontario Court of Appeal (OCA) decision involving a taxi driver who sexually assaulted his female passenger as “troubling” for the evolution of vicarious liability in Canada.
According to court documents, the plaintiff was at a party late one evening, intoxicated and feeling unwell. A friend called a taxi company to dispatch a taxi to drive her home. The taxi arrived, and the plaintiff alleged that she was sexually assaulted by its driver. The plaintiff sued the driver and the taxi company for damages, claiming the company was vicariously liable for the misconduct of its driver.
The OCA found the taxi company was not vicariously liable and the SCC denied leave to appeal.
“In this era of #MeToo and heightened concern about the prevalence of sexual harassment and sexual assault and the serious harms these cause, we need our courts to grapple with how to extend, not limit, vicarious liability because it is truly one of the best legal tools at our disposal,” Grace says.
“We have to use the law to stop the pervasive problem of sexual abuse and target the more powerful entities in society who can make a real difference,” Grace adds. “I fear Canada may be falling behind other Commonwealth jurisdictions when it comes to applying vicarious liability to sexual abuse committed in novel contexts. We need this form of legal liability to evolve and be used as a tool to reduce instances of sexual misconduct.”
This article originally appeared on AdvocateDaily.com
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Trends In Civil Sexual Abuse Awards: Part 2
In the second instalment of a miniseries on advancing damages in sexual assault cases, Toronto civil sexual abuse lawyer Elizabeth Grace discusses developments in awards for historical childhood abuse.
In the second instalment of a miniseries on advancing damages in sexual assault cases, Toronto civil sexual abuse lawyer Elizabeth Grace discusses developments in awards for historical childhood abuse.
The award ranges for pain and suffering awards in historical childhood sexual abuse cases are steadily climbing, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.
“These inflation-adjusted non-pecuniary ranges act as benchmarks,” says Grace, who has been practising in the area of sexual abuse and misconduct for 25 years. “What I have noticed lately is that defence counsel are starting to acknowledge this.”
She points to a 2004 Ontario Superior Court of Justice matter involving three brothers who had been abused by their former priest. Justice John Kerr found the abuse justified awards at the upper end of the scale and noted the damages suggested by the defence did not “reflect the present-day level of awards for compensation for the effects of sexual assault on individuals in their formative years.”
Grace, partner with Lerners LLP, says the range for childhood sexual abuse for non-pecuniary damages identified in this 2004 decision works out to be approximately $159,000 to $319,000 when adjusted for inflation.
“Fourteen years later, a 2018 case involving a teacher sexually abusing a child provides an even bigger range,” she says.
In that matter, an action was brought by an adult plaintiff against his teacher and the school board for childhood sexual abuse. The plaintiff — who suffers from major depression with dysthymia, post-traumatic stress disorder, substance abuse, and personality disorder of the antisocial and borderline type — alleged that these serious mental health issues and injuries were a result of the sexual abuse perpetrated on him by the defendant.
Grace, who was not involved in the matter and comments generally, says the judge found the inflation-adjusted range of non-pecuniary damages for childhood sexual abuse cases to be $56,000 to $371,000.
“$371,000 is now the high-water mark accepted by our courts,” notes Grace.
Justice Helen MacLeod-Beliveau found the impact of the sexual abuse on the plaintiff was severe and assessed the total damages at $250,000 for general non-pecuniary and aggravated damages. She also awarded $135,587 for future loss of an interdependent relationship.
Grace notes the validation of the future loss of interdependent relationship claim is significant.
“This pecuniary claim recognizes the loss of the ability to form and sustain an interdependent domestic relationship. This is a loss that can be measured and can cause economic hardship because two can live more cheaply than one. It’s recognized that there are efficiencies to living as a couple.”
“Years ago when I started in the sexual abuse area, there was this new loss of interdependency head of damages, and I thought, ‘Wow, this has application to the sexual abuse context.’ Fundamentally, you have people who have suffered a deeply personal wrong, and their trust has been broken. They often have difficulty forming relationships after the abuse. There are intimacy issues, and they will often have flashbacks to the abuse they suffered. This becomes a real problem when forming or maintaining relationships.”
She says it was refreshing to read that the court had found the category of pecuniary loss did apply in this childhood sexual abuse case.
“The decision breathes new life into this category of damages. The court recognized the plaintiff had failed marriages and accepted that there is a real possibility that he’s not going to form another relationship in his remaining years because of the abuse he suffered as a child.”
This article originally appeared on AdvocateDaily.com
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Trends In Civil Sexual Abuse Awards: Part 1
In the first installment of a two-part series on advancing damages in sexual assault claims, Toronto civil sexual abuse lawyer Elizabeth Grace discusses how one recent decision has increased the range for non-pecuniary damages in single incident adult female cases.
In the first installment of a two-part series on advancing damages in sexual assault claims, Toronto civil sexual abuse lawyer Elizabeth Grace discusses how one recent decision has increased the range for non-pecuniary damages in single incident adult female cases.
In an area of law where the significant harms caused by sexual assault and misconduct have been chronically undervalued, a recent Ontario Court of Appeal decision is “significant,” says Toronto civil sexual abuse lawyer Elizabeth Grace.
“There are many reasons why civil sexual assault damages have been historically undervalued,” says Grace, partner with Lerners LLP. “Often there are psychological harms that are ‘invisible’ or perceived as intangible and, as a result, are valued as being lesser.”
There is also complexity around sexual assault victims — with some people having been assaulted before or after the abuse in question — which tends to drive awards down, she tells AdvocateDaily.com.
“Sometimes a person suffered trauma before the main assault and so they had pre-existing problems. If there were prior incidents of abuse or neglect, the defence’s position is that the victim was already compromised, and they only need to be restored to where they would have been without the abuse in question,” Grace says.
She adds, “Victims of abuse will often go on to have troubled lives and suffer further traumas, assaults or have problems with the law. That is frequently a point of contention. Were those subsequent problems caused by the assault in question or were they independent and unrelated?”
Grace says despite these factors often driving down awards and settlements, a 2018 Ontario Court of Appeal decision that addresses the range of appropriate non-pecuniary damages for a single incident of sexual assault against an adult woman brings some needed clarity to the law.
The case involved a female physician who was assaulted by a male colleague in her home. They were both married and co-workers at an Ontario hospital. The sexual assault reportedly consisted of one incident when the man, under the pretext of visiting the woman’s home on an urgent matter, removed his shirt and then, in the bathroom, the rest of his clothes.
Returning to the room, he tripped his female colleague, thrust his erect penis into her face, pulled down her pants and penetrated her vagina. He rolled off after she screamed, and, as she was leaving the room, she saw him masturbate and ejaculate onto the rug, the decision states.
“The defence argued that this type of case is worth $20,000 to $50,000 when parties are essentially equal in terms of power dynamics, and there’s no evidence of long-lasting harm,” says Grace, who was not involved in the matter and comments generally.
The trial judge disagreed and awarded the plaintiff $175,000 for general and aggravated (non-pecuniary) damages. On appeal, the province’s top court affirmed this award, finding that sexual assault is unique and its “humiliating and degrading nature” would justify such an award in circumstances like this.
“The Court of Appeal in its reasons affirmed that the range of non-pecuniary damages in a single incident sexual assault against an adult woman is $144,000 to $290,000,” Grace says. “Those are not the damages you can calculate with precision, such as loss of income or the cost of therapy. Rather, these are damages that compensate for pain and suffering and the loss of enjoyment of life.”
“For victims of sexual assault, the category of non-pecuniary damages has always been a critical part of the compensation awarded. This is why the Court of Appeal’s decision is so important. It will guide lawyers acting on both sides of these cases when they are valuing claims,” she says. “And, of course, this range will have to be adjusted upward to account for inflation in the years to come.”
Stay tuned for part two where Grace will explore damages in childhood sexual abuse cases.
This article originally appeared on AdvocateDaily.com
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Punitive Damages Awarded In Revenge Porn Case
A recent civil case where the court awarded $100,000 in general, aggravated and punitive damages to a victim of “revenge porn” is a significant advancement of the common law.
A recent civil case where the court awarded $100,000 in general, aggravated and punitive damages to a victim of “revenge porn” is a significant advancement of the common law, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.
The Ontario Superior Court of Justice matter involved the plaintiff who was seeking a default judgment against her former boyfriend for damages arising from his abusive behaviour towards her and his posting — without her knowledge and consent — of a sexually explicit video of her on a pornographic internet website.
“This case involved physical assault against an intimate partner,” says Grace, partner with Lerners LLP. In addition, “the plaintiff’s ex-boyfriend and father of her child posted a sexually explicit video on a pornographic website. Her face was visible in the video while his was not, and he allegedly did it as payback because she reported his violence to the police.”
“While she consented at the time to the video being made, she did not consent to its public disclosure to others. By the time she learned about the video being posted online, at least two years had passed, and it was viewed more than 60,000 times, linked to 10 different websites and downloaded who knows many times,” Grace says.
“This was devastating to her, and she was haunted by the fear that others would see it, including her child,” she adds.
While Manitoba has the Intimate Image Protection Act and Saskatchewan, Alberta and Newfoundland have tabled revenge porn laws, there is no similar statute in Ontario, Grace says.
“What the court has done is use judge-made law to provide a remedy for acts of online harassment including revenge porn through the creation of the tort of public disclosure of private facts without consent,” she notes.
In her judgment, Justice Sally Gomery wrote: “A strength of the common law is its ability to evolve and adapt to changing circumstances.”
Her decision noted that the tort of public disclosure of private facts has existed in U.S. law for decades.
“Despite its vintage, it is well-suited for use in the context of internet posting and distribution of intimate and sexually explicit images and recordings. It is the cousin to another privacy tort already recognized in Ontario, intrusion on seclusion,” Gomery wrote. “As such, it is an appropriate, proportionate legal response to a growing problem enabled by new technology.”
Grace, who was not involved in the matter and comments generally, says another interesting aspect of the case was that the plaintiff received a separate award of damages for the breach of privacy she suffered.
“This case was against an individual, not an institution — so it’s significant. We’re not dealing with someone who is wealthy, yet the court awarded $75,000 for general and aggravated damages, plus $25,000 as punitive damages.” These amounts were, Grace stresses, “on top of the $20,000 awarded in general damages for the physical and verbal assaults the plaintiff had endured.”
The role of “punishing” people is often left to the criminal courts, Grace notes.
“In the sexual abuse area, civil courts will sometimes award punitive damages. In this case, the defendant had already been criminally convicted for his physical assaults, which is usually a reason why a civil court won’t award punitive damages,” Grace says. “But here, the court saw fit to award punitive damages for a wrong that had gone unpunished by the criminal court — the defendant’s revenge porn.”
This article originally appeared on AdvocateDaily.com
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Sexual Abuse Cases: Who Pays The Legal Bills?
Elizabeth Grace explains that a sexual abuse plaintiff's legal costs associated with advancing his or her claim can be very significant, especially if the case goes all the way to trial.
A sexual abuse plaintiff's legal costs associated with advancing his or her claim can be very significant, especially if the case goes all the way to trial.
A recent decision of the Supreme Court of British Columbia (“B.C.”), Nixon v. Pickton, 2015 BCSC 1700, highlights the factors that a trial judge may consider in awarding, or refusing to award, costs to a successful plaintiff who has rejected an offer to settle from the defendant, but fails to “beat” that offer at trial.
This decision has attracted some media attention (see“Pickton not responsible for victim's full legal costs” on Findlaw.ca, and “B.C. judge says David Pickton sex-assault victim should have settled” in an article published in The Globe and Mail).
Normally, a successful party's legal costs must be paid by the party who loses at trial. However, to encourage parties to settle before trial, our rules of court include various incentives based on payment of legal costs – specifically, who is to pay, on what scale, and starting at what point in time.
In the B.C. case, David Pickton sexually assaulted the plaintiff in the early 1990s. He was convicted for the assault. Many years later, the plaintiff commenced a lawsuit against Pickton seeking approximately $1 million in damages. She alleged that amongst other injuries, the assault caused her pain and suffering and resulted in a loss of past and future earnings.
Six weeks before the trial was set to begin, Pickton offered to settle the lawsuit for $50,000. Approximately 90 minutes after the offer was made, the plaintiff's lawyer notified Pickton's lawyer that the offer was rejected. The case proceeded to trial before a jury.
The plaintiff faced a number of challenges at trial. The accuracy of her memory was attacked, as was her credibility. Pickton's lawyers argued that the many miseries the plaintiff had suffered in her life called into question whether the assault by Pickton had caused her injuries. The judge agreed, concluding at paragraph 11 of his ruling on costs that “Ms. Nixon appeared to me as a witness who was not dishonest, but as a witness whose memory, and therefore credibility, were ravaged by the exceptionally difficult life she has faced. Frankly, on any rational assessment, her dealings with Mr. Pickton in 1991 were only a small event by comparison with the miseries she faced in many other parts of her troubled life.” The plaintiff had alleged that Pickton had cornered her, groped her body, and threatened to rape her.
The jury found in the plaintiff's favour and awarded her $45,000 as damages, which was less than Pickton's offer to settle for $50,000.
In his cost analysis, the trial judge stated that “[t]he dominant fact against Ms. Nixon […] is that she refused an offer to settle which she ought reasonably to have accepted.”
The trial judge only awarded the plaintiff her legal costs up until the date of Pickton's offer to settle. The judge refused to award her costs for the period that followed his offer. Pickton requested that he be awarded his legal costs from the date that his offer was made through to the end of the trial. The judge refused his request, stating that the plaintiff was the successful party at trial, and it would be wrong to award any portion of the trial costs to Mr. Pickton. In short, the parties were each made to bear their own legal costs after the offer was made.
The practical consequence for this plaintiff was that she likely netted very little compensation, despite her success at trial, because she had to cover her lawyer's fees that accrued after she rejected Mr. Pickton's offer to settle. One question that arises is whether this same decision could also have been made in Ontario, where the legislative scheme differs from that of British Columbia.
Ontario's Victims' Bill of Rights, S.O. 1995, chapter 6, specifically addresses when a victim of crime sues convicted perpetrators of the crime. The preamble to the Victims' Bill of Rights states that victims should be treated with compassion and fairness and “the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.”
One provision intended to further these goals relates to legal costs. Section 4(6) states that when a judge orders costs in favour of a victim, those costs “shall” be made on a solicitor-client basis (now known as “substantial indemnity basis”), such as after a favourable outcome at trial, unless the judge considers that to do so would not be in the interests of justice. Where costs on a substantial indemnity basis are awarded, the successful party is able to recoup a much greater percentage of his or her legal costs incurred than when the costs are awarded on the lower scale, known as “partial indemnity” costs.
Section 4(6) reflects the guiding principles of the Victims' Bill of Rights, namely, that victims should be treated with compassion and fairness. In K.T. v. Vranich, 2011 ONSC 683, Justice Whitten stated at paragraph 29 of his reasons for judgment that “[t]hose principles dictate that the cost of litigation should not be borne by [a victim of sexual assault] who is only here by virtue of the intentional actions of [the perpetrator]. Actions in which he sought his own gratification at the expense of [the victim's] autonomy and dignity.”
Moreover, cost awards under section 4(6) of Ontario's Victims' Bill of Rights are not made only against the individual who committed the crime. Where an institutional defendant, such as the convicted defendant's employer, is found liable for its employee's wrongful conduct, section 4(6) will be triggered such that substantial indemnity costs will also be ordered against the institutional defendant (see Evans v. Sproule, 2008 CanLII 58428 (ONSC) at paragraph 138).
However, where a defendant makes an offer to settle before trial, that offer is rejected by the plaintiff, and the plaintiff obtains a result at trial that is less than the amount of the offer, it is unclear how section 4(6) of the Victims' Bill of Rights would interact with the costs regime under Ontario's Rules of Civil Procedure. While the rules relating to legal costs are discretionary and determined on a case-by-case basis, the Rules contemplate the scenario of a rejected offer. Pursuant to Rule 49.10(2), where the plaintiff rejects the defendant's offer and obtains a less favourable judgment than the offer, the defendant is entitled to receive its legal costs from the plaintiff starting from the date the offer was made.
Would that result conflict with the express language of the Victims' Bill of Rights? The answer may be no, especially if one favours a technical approach to the statutory language over one that puts the emphasis on the principles of compassion and fairness for victims of crime. Section 4(6) states: “A judge who makes an order for costs in favour of a victim shall make the order on a [substantial indemnity] basis, unless the judge considers that to do so would not be in the interests of justice.” This provision only applies where a judge makes an order for costs in favour of a victim. A decision that a plaintiff is not entitled to costs does not offend the language of section 4(6), which addresses the quantum of costs. Moreover, the Victims' Bill of Rights does not provide direction on when a judge should make an order for costs in favour of a victim. Finally, the Victims' Bill of Rights gives the judge residual discretion to do what they believe to be “in the interests of justice”.
Applying the Victims' Bill of Rights to the Pickton case provides an illustration of this hypothetical. There, the judge ruled that the plaintiff ought reasonably to have accepted the defendant's offer to settle. As she failed to so, the judge ruled that she was not entitled to her legal costs from the date that the offer was made through to the end of trial. The judge did not make an order for costs in her favour after the date the offer to settle was made, meaning that section 4(6) would not have been triggered. It is only after a judge has chosen to make an order for costs in favour of a victim that they are mandated to do so on a substantial indemnity basis, but a judge always has an overriding discretion to determine to whom and when they will award costs.
While the outcome in the B.C. case may not be at odds with section 4(6) of the Victims' Bill of Rights, there is nonetheless an argument to be made that it would offend the Act's underlying principles, namely that a victim of crime be treated with compassion, fairness, and that victims not be discouraged from participating in the justice process. Where a victim of a sexual crime reasonably believes that they are entitled to a higher quantum of compensation than a defendant has offered, the victim ought to be entitled to take the matter to trial without fear of being unable to recoup their legal costs. That said, victims who are plaintiffs in civil lawsuits would be well advised to objectively evaluate the strengths and weaknesses of their claims and give careful consideration to any offer to settle that is made by a defendant.
Elizabeth Grace is a civil sexual abuse lawyer in Toronto and has specialized in sexual assault matters for nearly two decades.
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