LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
Elizabeth Grace Quoted In CBC News Article
Elizabeth Grace was interviewed for an article in CBC News about a Manitoba court that ordered that two sisters must pay $50,000 each as security for costs to proceed with their civil lawsuit against a former church youth leader accused of sexually assaulting them between 1974-1979.
WARNING: This article contains details of abuse.
"The average person cannot afford $50,000 just to proceed with a lawsuit that has its own risks and stresses … On top of that, they've got to pay money out just for the privilege of pursuing justice? It's a huge barrier."
Elizabeth Grace was interviewed for an article in CBC News about a Manitoba court that ordered that two sisters must pay $50,000 each as security for costs to proceed with their civil lawsuit against a former church youth leader accused of sexually assaulting them between 1974-1979. 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.
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.
Ontario Court Rejects Stereotypical Myths And Confirms Single Sexual Assault Against Adult Warrants High Damages
A critical case for adult survivors of sexual assault claiming damages, the court in BE v. OR debunks harmful myths and awards meaningful damages intended both to compensate and punish. Elizabeth Grace highlights the importance of the court’s decision.
Because the majority of civil sexual assault cases are settled out of court, it is always helpful when a plaintiff has the courage and tenacity to pursue their claims right through to trial. The plaintiff who does so does a service to other litigants and potential litigants by adding to the body of precedent that informs not only future court decisions, but also settlement negotiations in other cases.
The recent addition of BE v. OR, 2024 ONSC 6193 to this body of precedent confirms that a single occasion of sexual assault against an adult victim can attract very significant non-pecuniary damages that, in Ontario at least, may also be supplemented by a large pre-judgement interest award.
THE FACTS
BE v. OR, 2024 ONSC 6193, decided by Justice C.J. Brown who sits in Toronto, was released on November 12, 2024. It involved an assault committed just over nine years prior, in September 2015.
The plaintiff was 29 years old when he was sexually assaulted by the defendant, who was both his older neighbour and a lawyer. Before the sexual assault, the parties’ families were on friendly terms. The plaintiff was accustomed to assisting the defendant with small tasks on request.
One evening, the defendant asked if the plaintiff would give him a drive. The plaintiff agreed, but when he arrived at the defendant’s house to pick him up, he found the defendant and another man there. The plaintiff was led to the basement, where he was sexually assaulted by the defendant and the other man. The sexual assault included repeat fellatio on the plaintiff.
The defendant denied the plaintiff’s allegations and responded to the Statement of Claim with a Counterclaim against the plaintiff for sexual assault. While some say the best defence is a good offence, that was not the case here.
HE SAYS VS. HE SAYS: CREDIBILITY & RELIABILITY
The dispute between the parties was a classic one requiring the trial judge to consider diametrically opposed versions of events and assess each party’s and their witnesses’ credibility and reliability.
The trial judge, in a textbook summary of the factors that enter into assessing credibility and reliability, favoured the plaintiff’s over the defendant’s evidence.
Regarding the plaintiff, the judge wrote:
“I found the evidence of BE to be straightforward and candid. His answers were intelligent and thoughtful. He was quiet and somewhat timid in testifying. He testified with respect to the events surrounding his adulthood and the sexual assault without attempting to avoid answering questions. He was not defensive or argumentative, but was forthright in his testimony. Where he did not know an answer, he candidly stated this. His evidence was not contradicted by the documentary evidence. His answers were consistent in examination in chief and in cross-examination.
I found his evidence to be reliable and find him to be credible.”
In juxtaposition, the judge wrote about the defendant:
“OR’s evidence was guarded, defensive and argumentative. He was evasive and attempted to avoid answering questions that did not fit his narrative or the theory of his case. He attempted to answer around or explain away certain facts and evidence. He obfuscated when faced with difficult questions. His answers were often not consistent with the documentary evidence. He would continue to deny facts despite the documentary evidence shown to him which contradicted his answers. In these cases, he would attempt to work around or explain away the contradictory documentary evidence.
OR refused to admit to reasonable facts and was impeached in cross-examination on prior inconsistent statements. He could not recall or would not admit to facts despite being shown contemporary text messages that he had sent. In some instances, he responded to material evidence declaring it to be fraudulent or made up.
His evidence throughout was defensive and argumentative. I find OR’s evidence to be unreliable and I do not find him to be credible.”
These statements are ones I intend to share going forward with clients and witnesses when I prepare them for examination because these words by a judge will, I hope, bring home the point I always make about how essential it is to be candid, responsive, modest and not defensive when being examined under oath.
CONSENT
The torts at issue in BE v. OR included assault and battery and the intentional infliction of mental suffering.
After explaining that in a civil case the defence of consent will defeat the tort of battery only where the defendant can prove they acted with the plaintiff’s consent, the trial judge in BE v. OR cited Supreme Court of Canada authority for her concise and to the point statement that “silence, ambiguous conduct or a lack of objection does not establish consent.”
These are words defence counsel in particular should be mindful of. I have previously written about the defence of consent in civil cases, and it is my experience that consent arguments are too often being advanced in circumstances where there is no credible basis for doing so if the law of consent were truly understood.
MYTHS & STEREOTYPES
The trial judge in BE v. OR rejected the defendant lawyer’s arguments that the plaintiff, by freezing and not knowing what to do while being assaulted, did not act as he should have, or as the “common man” would have done.
Off the top of my head (and I have been working in the sexual abuse field for about 30 years now), I cannot think of another reported sexual assault decision involving an adult male victim. I have little doubt that the arguments leveled against the male plaintiff in BE v. OR were gendered ones because he is male and was viewed as not responding in the “manly” ways deemed appropriate in a male-dominated, patriarchal society and culture.
Brown J. strongly rejected these kinds of arguments, finding them to be based on stereotypical myths about a sexual assault victim’s expected behaviour. She found the plaintiff was traumatized by the events in the defendant’s basement, did not consent to being sexually touched, and she concluded the defendant had committed the torts of assault and battery, as well as the intentional infliction of mental suffering.
NON-PECUNIARY DAMAGES & PRE-JUDGMENT INTEREST
The judge in BE v. OR concluded on the evidence that, as a result of the defendant’s sexual assault, the plaintiff had suffered psychological, physical and economic harm. She awarded the plaintiff general and aggravated damages totalling $300,000.
The general and aggravated damages award of $300,000 in BE v. OR is in keeping with Zando v. Ali, 2018 ONCA 680, where the plaintiff, an adult female victim, was awarded $175,000 (in 2017 dollars) as general and aggravated damages, which is the equivalent of about $217,000 in 2024 dollars once adjusted for inflation. In upholding this award, the Court of Appeal in Zando v. Ali referred with approval to the range the trial judge had identified as appropriate for adult, single incident sexual assault, being $144,000 to $290,000 in 2017 dollars, or $178,500 to $360,000 in 2024 dollars.
In Zando v. Ali, there was no evidence of long-term harm to the plaintiff. In BE v. OR there was. In other words, the higher amount awarded for general and aggravated damages in BE v. OR reflects the pronounced negative impacts, many of them lasting, that the sexual assaults had on the plaintiff.
Importantly, the trial judge in BE v. OR fixed pre-judgment interest on her non-pecuniary damages award of $300,000 at 5% per annum from the time the plaintiff reported the sexual assault to his doctor in 2015, amounting to roughly nine years, and by my calculation, approximately $135,000.
This is not the first time an Ontario court has made a large pre-judgment interest award in a sexual abuse case. In CO v. Williamson, 2020 ONSC 3874, an historical case I took to trial, a teenage victim of sexual assault was awarded $300,000 (in 2020 dollars) for general and aggravated damages, plus pre-judgment interest of just over $175,000 (in that case, calculated at the rate of 2.5% per annum for a period of roughly 23.5 years).
When CO v. Williamson was decided in 2020, there was an emerging belief that the courts should exercise their discretion to fix interest rates on non-pecuniary damages at less than the presumptive 5% rate prescribed by Rule 53.10 of Ontario’s Rules of Civil Procedure. Those days are now gone after the Ontario Court of Appeal recently reaffirmed that the 5% interest rate applies unless evidence and special circumstances provide a basis for departing from this rule: see Henry v. Zaitlen, 2024 ONCA 614 and Aubin v. Synagogue and Jewish Community Centre of Ottawa, 2024 ONCA 615.
In my experience, defendants and their lawyers often recoil at the prospect of such large amounts for interest, arguing these amounts cannot possibly be justified since they approach or possibly even exceed the underlying damages award. The time for such denial is over.
HIGH-WATER MARK FOR PUNITIVE DAMAGES
The trial judge in BE v. OR expressed her condemnation of the defendant’s conduct, both during his abusive interaction with the plaintiff and during the litigation, by making a punitive damages award of $250,000.
This represents if not the highest punitive damages award against an individual defendant perpetrator of sexual assault, certainly a high-water mark for such damages.
Indeed, in CO v. Williamson, 2020 ONSC 3874, mentioned above, the trial judge indicated he would have been inclined to award $150,000 as punitive damages had this amount been requested. Instead, he awarded $100,000, which is what the plaintiff had asked for based on then-existing precedent.
Where an individual defendant has not been otherwise punished, such as by the criminal courts, and the defendant takes the matter to trial, that defendant takes the risk of a large punitive damages award being made against them as an expression of the court’s condemnation for their misconduct, and possibly also for the manner in which they conducted the litigation. Lawyers acting for such individuals need to be alert to this possibility and warn their clients about the risk they face.
CONCLUSION
Total damages awarded in BE v. OR amounted to $685,052. In addition to the general and aggravated damages of $300,000, amounts for pass loss of income and past and future psychological care were awarded. With pre-judgment interest added, the judgment for damages and interest is just over $800,000. With the substantial indemnity costs also awarded by the trial judge, the defendant is looking at a judgment against him totalling over $1 Million.
It bears remembering that the defendant will not be able to escape payment by declaring bankruptcy, because s. 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act, RSC 1985, c. B-3 does not allow a person to be discharged from a civil judgement debt based on sexual assault.
Without question, BE v. OR is a welcome and needed addition to the body of caselaw that deals with adult survivors of sexual assault and the compensatory and punitive damages to which they are entitled. It should also serve as a powerful deterrent to relying on the stereotypical myths that surround the “expected” behaviours of “real” victims of sexual assault that are so often used to try and discredit them, especially if they were teenagers or adults at the relevant time.
The significant amount of general and aggravated damages awarded based on a single sexual assault and the pre-judgment interest on those damages confirms that single incident cases involving adults should be taken seriously by defence counsel. This applies not only to those acting for the individuals alleged to have committed such sexual assaults, but also, where applicable, to those representing organizational defendants which may be jointly and severally liable with the individual perpetrator.
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.
Elizabeth Grace Mentioned In The Catholic Register Column
Elizabeth Grace was recently interviewed for a column in The Catholic Register, where she touched on alternative ways to come to binding agreements in cases of alleged sexual abuse.
Elizabeth Grace was recently interviewed for a column in The Catholic Register, where she touched on alternative ways to come to binding agreements in cases of alleged sexual abuse. 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.
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.
Criminal Convictions Continue To Prove Advantageous For Subsequent Civil Lawsuits: Latest On Summary Judgment In Sexual Assault Cases
Elizabeth Grace explains that a criminal conviction, while not necessary for success in a civil lawsuit for damages, can nonetheless be advantageous.
A criminal conviction, while not necessary for success in a civil lawsuit for damages, can nonetheless be advantageous.
Here, I again update an earlier blog, Criminal Convictions Advantageous for Subsequent Civil Lawsuit, to describe yet another example of the successful use of a criminal conviction to secure partial summary judgment: Helston v. Cadorette, 2024 ONSC 1636, 2024 CarswellOnt 4358. However, this latest Ontario decision reinforces the need to take care when seeking full summary judgment, since the court declined to grant summary judgment on damages, finding this was an issue for trial.
With the backlog in our courts and the delays getting cases to trial, it is worth considering more than ever whether summary judgment is an option that makes legal and practical sense. At the end of this article, I offer “takeaways” to assist in making that decision.
Introduction
In sexual abuse and violence cases that are pursued in our civil courts, it is common for there to have been a prior criminal proceeding involving the same parties and factual issues. Many survivors are unaware that the civil justice system provides an alternative, or an additional, means of recourse and accountability. As a result, they often go directly to the police, thinking the criminal justice system is the only option available to them, and never resort to the civil justice system. Other survivors make a deliberate choice to report first to the police and go through a criminal proceeding before pursuing compensation through a civil action. This article addresses the second situation.
In a previous blog post, a posted article, and a video, I explained key differences between criminal and civil proceedings based on sexual assault allegations and how the two systems of justice — criminal and civil — interact. Here, my focus is on how a criminal conviction can be used in a summary judgment motion to narrow or resolve the issues that need to be proven in a subsequent civil lawsuit. Three recent Ontario Superior of Justice decisions, as well as an older Ontario Court of Appeal decision, provide helpful guidance on this topic.
Case Law Review
After Franco v. White 2001 CanLII 24020, where the Ontario Court of Appeal in 2001 upheld a summary judgment ruling based on a conviction, there seemed to be few motions brought in civil abuse cases for summary judgment on the basis of prior convictions. However, recently I have noted what appears to be renewed interest in pursuing this option.
In Lambert et al. v. Lambert, 2022 ONSC 6432, the defendant pleaded guilty to three counts of indecent assault against three family members. Afterward, two of these family members (daughters of the defendant) sued their father for compensation. Despite his guilty plea in the criminal proceeding, the father denied any wrongdoing in his civil Statement of Defence.
The plaintiff daughters went to court to ask for partial summary judgment. They wanted their father’s legal responsibility for abusing them determined summarily on the basis of his prior conviction, so only the issues of damages and what caused their damages would be left to be determined at trial. The Ontario Court of Appeal in Butera v. Chown Cairns LLP, 2017 ONCA 783 has said partial (as opposed to full) summary judgment will only be granted in rare cases. In Lambert v. Lambert, the judge granted the plaintiffs’ motion, while acknowledging that partial summary judgment is reserved only for the “clearest” of cases. The judge found the case before him was one of those clear cases.
In explaining his decision to grant partial summary judgment, the judge said, “Plaintiffs who are victims of sexual assault should know at the earliest opportunity that the issue of liability is a non-issue… It is equally important that the defendant understand now, and not later, that liability is no longer an issue.” The judge said it would be “a rare case where partial summary judgment would not be granted” in circumstances like the ones before him.
Once partial summary judgment has dispensed with the need to prove liability, plaintiffs still have to prove damages. Likewise, if there are other defendants besides the criminally convicted defendant, the liability of those other defendants will remain to be determined. However, even with these issues going to trial for resolution, one is likely looking at a more streamlined trial process that does not require plaintiffs to revisit the painful details of the sexual abuse they endured.
In W.C. v. R.S., 2023 ONSC 4287 the plaintiff also relied on a prior criminal conviction by guilty plea to secure summary judgment on liability. The defendant was the plaintiff’s father’s cousin and sixteen years older than the plaintiff. When the plaintiff was only 14, the defendant coerced her into engaging in a sexually exploitative relationship with him. He pleaded guilty to a charge of “seduction” of a female between the ages of 16 and 18 years of age, an offence that was on the books at the time of the abuse. Before the criminal court, the Crown read into the record the relevant facts about the defendant’s sexual misconduct. These included that his abuse had started when the plaintiff was 14 and had continued for many years afterward. The defendant personally agreed on the record that this was “what happened.”
While the plaintiff argued the prior conviction and admitted facts were sufficient to dispose of the issue of civil liability, the defendant countered that the sexual activity was consensual, a defence he said was only available to him in the civil action because lack of consent was not an element of the offence of seduction. On this basis, the defendant argued his liability was an issue for trial.
Both parties filed affidavits on the plaintiff’s motion for summary judgment, and there was cross-examination on the affidavits. Citing Lambert v. Lambert, referred to above, the motions judge found the defendant was “bound by the admissions he made to the essential essential facts of the offence,” and while the offence to which the defendant pleaded guilty only covered the sexual abuse that occurred when the plaintiff was over age 16, the admitted facts went beyond that. The judge was satisfied that the elements of the tort of battery were made out, and there was no consent capable of giving rise to a defence to the tort. Nothing said in the affidavits nor on cross-examination raised a genuine issue for trial relevant to consent.
Of note, the judge in W.C. v. R.S. then went on to assess the plaintiff’s damages, finding that the record (which included evidence by a psychologist who had assessed the plaintiff) was sufficient to make the necessary determinations, and a trial on damages would not be the fairest, most proportionate, and most expeditious way to do justice between the parties. Thus, full summary judgment disposing of the entire action was granted. Non-pecuniary damages of $275,000 ($225,000 for general damages and $50,000 for aggravated damages) were awarded, as were damages for future therapy. The judge declined to award damages for loss of competitive advantage or punitive damages.
The latest decision on point is Helston v. Cadorette, 2024 ONSC 1636, 2024 CarswellOnt 4358. Here, the plaintiff moved for full summary judgment on liability and damages, but was only partially successful. The court concluded that summary judgment on liability was appropriate for the assaults which were the subject of the defendant’s convictions. However, it found there were genuine issues regarding the impact of the abuse relative to other adverse experiences in the plaintiff’s life, and therefore, determination of the plaintiff’s damages required a trial for resolution.
This decision serves as a reminder that summary judgment does not flow automatically from the fact of a conviction, and that to succeed, there must be a fulsome evidentiary record that is sufficiently clear and non-contentious for the motions judge to feel confident they can fairly resolve the dispute without a trial. It also highlights how, when moving for summary judgment, one must be strategic and think through whether giving up certain claims is worth the benefits of a more expeditious and less costly dispute resolution process.
In Helston v. Cadorette, the plaintiff sued his former hockey coach after having him charged criminally for sexual offences committed when the plaintiff was between 12 and 14 years old. The defendant pled guilty and was consequentially convicted of the sexual offences of indecent assault and gross indecency. In his civil suit, the plaintiff relied for liability on the torts of assault, sexual battery and the intentional infliction of mental suffering, as well as on breach of fiduciary duty. Of note, the plaintiff’s lawyer advised the court that her client was only seeking summary judgment on the acts underlying the conviction, thereby abandoning any claim for acts of abuse that were not the subject of the conviction.
The evidentiary rule in s. 22.1 of the Ontario Evidence Act was relied upon to use the defendant’s prior conviction as proof of the verdict and the essential facts of the offence. The defendant, in resisting summary judgment on liability, sought to dispute the facts admitted by him at his criminal trial by way of an agreed statement of facts negotiated between his criminal defence lawyer and the Crown, and presented to the criminal court. The motions judge relied on the doctrine of abuse of process to prevent him from relitigating the essential facts of the offences, saying that to allow him to recant from the admissions he previously made at his criminal trial would bring the administration of justice into disrepute.
There was voluminous evidence filed by the parties in Helston v. Cadorette, including contradictory evidence by their respective experts on the impact the defendant’s sexual abuse had on the plaintiff. The plaintiff urged the motions judge to use her powers to weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence so as to avoid a trial. The judge, however, held she could not decide between the conflicting expert opinions based solely on the paper record, and the interests of justice required live testimony to determine credibilty issues and which of the competing expert opinions to accept. Nonetheless, the judge found that partial summary judgment was appropriate because the liability issues could be bifurcated from the damages issues and dealt with expeditiously and in a cost-effective manner.
One last point: It is the conviction, and not whether it arose from a guility plea or guilty verdict, that is important. Lambert v. Lambert, W.C. v. R.S. and Helston v. Cadorette all involved a conviction arising from a guilty plea, which is an admission of wrongdoing by the accused person. Franco v. White 2001 CanLII 24020 was a sexual assault case in which the accused at his criminal trial entered a plea of “not guilty,” and then faced a trial on the merits that resulted in a guilty verdict. The Ontario Court of Appeal upheld the lower court’s decision to grant summary judgment on liability based on this conviction.
Takeaways
I offer some takeaways from the case law and my years of experience litigating sexual abuse claims to help the reader decide whether to bring (or resist) a motion for summary judgment based on a prior conviction (that is not under appeal nor been successfully appealed) involving overlapping parties and issues:
1. Section 22.1 of the Ontario Evidence Act provides that proof of a person’s conviction is proof in another subsequent proceeding that the criminal offence was, in fact, committed by that person unless there is evidence to the contrary. In short, the Evidence Act creates a statutory presumption of wrongdoing in the face of a conviction. This has also been described as giving rise to prima facie proof (to be distinguished from conclusive proof) of the fact of guilt in a later civil proceeding. Other jurisdictions in Canada have similar provisions in their respective Evidence Acts.
2. Proof of a person’s prior conviction is proof not only of the guilty finding, but also of the “essential facts” underlying the criminal offence for which the person was found guilty — i.e., that the person committed certain unlawful acts with the state of mind (or intent) necessary to result in criminal guilt for the particular offence.
3. As a result, convicted defendants cannot re-litigate the essential facts underlying the criminal offence. This means they cannot lead evidence to contradict the key facts behind their convictions.
4. However, the statutory presumption of wrongdoing created by the Ontario Evidence Act (and other Evidence Acts across Canada) can, in certain circumstances, be rebutted (or countered). As the Ontario Court of Appeal in Franco v. White said, “Summary judgment does not follow automatically upon a criminal conviction if the defendant can show that despite the conviction, there is an issue to be tried.” The courts have accepted that defendants may rebut the presumption of wrongdoing to which a conviction gives rise. To do so, they will need to adduce compelling evidence that, in the context of a summary judgment motion, gives rise to a triable issue or, if at trial, is sufficient to discharge the defendant’s rebuttal onus of proof. Examples of where the effect of a conviction may be successfully rebutted are where the conviction was vague, and there was not sufficient similarity between the facts giving rise to the civil claim and those underlying the conviction, or where a defendant lacked adequate incentive to fully defend a minor criminal charge, and it would be unfair to hold the defendant to that result when facing more serious consequences from a civil action. The case law suggests it will be rare for a court to look behind a criminal conviction and find it cannot be relied upon in a subsequent civil proceeding. Certainly, a previously convicted defendant cannot simply repeat their plea of not guilty and assert a blanket denial of the allegations, and expect this to be sufficient to rebut the presumption of guilt. More than this is required.
5. The documents from the criminal proceeding that civil lawyers on both sides need to collect and rely upon to prove (or rebut) the presumption of wrongdoing in the civil proceeding include:
(a) A certificate of conviction (see s. 22.1(3) of Ontario’s Evidence Act, which addresses how to prove a conviction);
(b) In the case of a guilty plea, the transcript of the criminal proceeding that includes the agreed statement of facts, the judge’s reasons for guilty verdict, and the judge’s reasons for sentence; and
(c) In the case of a contested trial on the merits, the transcript of the criminal proceeding that includes the judge’s jury charge and the jury’s verdict (where it was trial by jury), and in a trial by judge alone, the judge’s reasons for conviction, and the judge’s reasons for sentence. (See s. 5 of Ontario’s Evidence Act which addresses admissibility of transcripts and s. 36(1) for when judicial notice can be taken of a judicial document like a judge’s reasons, order, and judgment.)
6. For plaintiffs and their lawyers, there is good legal authority for shortening the civil litigation process by, in effect, taking a big (and often difficult) piece of what has to be proven — namely, the factual allegations of the assault(s) that underpin civil liability — out of the equation. This potentially means a more streamlined litigation process, including a narrower scope for documentary and oral discovery of the plaintiff and a shorter and less distressing process for the plaintiff, who will not be called upon to repeat and re-live the details of what happened through oral examination for discovery, a defence medical examination, and/or at trial through their testimony.
7. However, there are many practical considerations that plaintiffs and their lawyers will need to bear in mind when deciding whether to move for summary judgment on liability. These include:
(a) Whether this means they must confine the causes of action pleaded in their Statement of Claim to those that most closely resemble the elements of the criminal offence for which the defendant was convicted, or abandon certain causes of action that introduce new elements that will have to be separately proven to establish liability. In Franco v. White, the plaintiff on the summary judgment motion made a strategic decision to abandon her claims for breach of trust, negligence, and intentional infliction of mental suffering asserted in her Statement of Claim and to limit her claim to one for civil sexual assault. The plaintiff in W.C. v. R.S. similarly abandoned some of the causes of action in her Statement of Claim. In some cases, restricting the claim made to what aligns most closely with the criminal offence on which the conviction was based will not capture the full extent of the wrongdoing and its impacts.
(b) Whether removing liability from the equation might unduly narrow the defendant’s documentary and oral discovery obligations.
(c) Whether the conviction is based on facts that do not cover the full range of factual allegations in terms of types and nature of occurrences and potentially aggravating factors, like threats, violence, breach of trust, and being made to submit to particularly degrading or humiliating acts. If so, there may be good reason not to pursue partial summary judgment, so the full scope of the wrongdoing is before the court when it assesses damages;
(d) Remember that a plea of “guilty” is often based on an agreed statement of facts, which reflects a compromise between the Crown and the accused person. Such a statement will need to be reviewed carefully to determine what was omitted, and how any omissions may detract from the plaintiff’s civil claims for liability and damages;
(e) Whether, in order to prove compensatory damages in the civil proceeding, evidence with respect to the facts of what happened are necessary and helpful to the plaintiff’s case;
(f) Whether, in order to overcome the impediments to punitive damages where there has been a prior conviction (see V.T. v. D.T., 2021 ONSC 5926 for the guiding principles in this regard), it is necessary to adduce evidence as to what exactly occurred and how, for example, this extended beyond the facts supporting the criminal conviction; and
(g) Whether defence counsel will voluntarily agree to limit discovery of the plaintiff to the issues of damages and their causes. If the Statement of Defence contains a complete denial of wrongdoing despite the prior conviction, determine whether it is worth trying to reach an agreement with the defence lawyer(s) that they will not question the plaintiff on what happened, and will agree to limit their examination to what impacts the assaults (and other events) had on the plaintiff.
8. For convicted defendants and their lawyers, the following should be considered from the outset:
(a) Whether a blanket (or complete) denial of liability in a Statement of Defence, response to a motion for summary judgment on liability, and/or Request to Admit is advisable, bearing in mind that doing so could give rise to additional damages being awarded against the defendant for their refusal to accept the guilty verdict and their lack remorse and/or an unfavourable cost award for prolonging the litigation;
(b) If the allegations in the civil lawsuit extend beyond the essential facts on which the criminal conviction was based, then consider asserting a partial denial of liability in which only the allegations of fact that extend beyond those that were foundational to the conviction are disputed;
(c) If evidence to rebut the statutory presumption of wrongdoing that arises from a conviction is available, be sure to plead the relevant facts in the Statement of Defence and to adduce this evidence in response to a motion for partial summary judgment on liability and/or to lead it at trial; and
(d) If the presumption of wrongdoing from the conviction is unassailable, then look for ways to shorten the litigation and its associated expense by conducting an examination for discovery of the plaintiff that is focused on damages (and telling the plaintiff’s lawyer in advance that this is the intent), and looking for early opportunities to settle the action.
Conclusion
Unlike a prior acquittal which is not relevant nor admissible in a civil case (see, for example, Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427), a prior conviction has many implications for a later civil lawsuit involving the same parties and essential facts. The potential for summary judgment on liability is just one of these implications. Our courts have made it clear that a criminal conviction can be advantageous for plaintiffs in a later civil action, as it may dispense with the need to prove liability against convicted defendants. The decision to proceed with a motion for partial or full summary judgment, and what position to take in response to such a motion, are matters deserving of careful and strategic consideration by the parties to a civil lawsuit and their lawyers.
While a prior conviction is by no means a prerequisite to pursuing a civil remedy for sexual abuse and violence, where a conviction does exist, whether based on a guilty plea or a verdict, it will usually allow plaintiff survivors to move through the civil process towards resolution and some closure, more efficiently and confidently. For defendants — both those who have been previously convicted and others who may share legal responsibility for the wrongdoing — a prior criminal conviction can offer opportunities for a more streamlined and cost-effective resolution of a civil matter.
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.
The Defence Of Consent In Civil (Not Criminal) Sexual Assault Cases
Elizabeth Grace says that it is essential that lawyers on both plaintiff and defence sides, and their clients, know how consent is approached by our civil courts.
The defence of consent comes up regularly in civil litigation where sexual assault has been alleged and the defendant admits there was sexual contact, but says it was not unlawful because the contact was consensual. Most often, consent is raised when the sexual contact occurred between adults.
While it would be highly unusual, if not outright improper, to see consent raised where the person claiming to have been assaulted was a minor at the relevant time, I do sometimes see consent raised in instances where sexualized contact started when a person was a child and continued or resumed after they became an adult. I also see consent raised when the person claiming to have suffered sexual assault was in their late teens at the time of the contact.
It is essential that lawyers on both plaintiff and defence sides, and their clients, know how consent is approached by our civil courts, especially because civil sexual assault cases tend to attract less media attention and scrutiny than their criminal counterparts. Importantly, the defence of consent operates differently depending on whether the sexual assault is being litigated in a criminal or civil context. While there are common principles, there are also critical differences.
Consent in the Criminal vs Civil Context
My understanding as a civil litigator is that, in criminal law, lack of consent is an element of the offence of sexual assault. What I mean by this is that the Crown, which has the onus of proof in a criminal case, must establish beyond a reasonable doubt that there was:
Sexual touching,
No consent, and
An intention to touch knowing there was no consent, or being reckless or willfully blind as to lack of consent.
This is different from civil law, where the person alleging sexual assault (the plaintiff) has the onus of proof, and must establish on a balance of probabilities that there was intentional sexual touching. The plaintiff need not prove the absence of their consent to this touching; rather, the plaintiff need only assert that the touching was non-consensual. The onus of proof then shifts to the defendant to establish, again on a balance of probabilities, that there was actual consent, or that a reasonable person in their position would have believed there was consent. In other words, it falls to the defendant to prove consent, not to the plaintiff to disprove consent.
This means the defence of consent in a civil case is an affirmative one — if not raised by a defendant, then it is not to be considered.
As a general rule, sexual assault is easier to establish in a civil rather than a criminal case. This is because of the differences in how the defence of consent comes into play and in the burdens of proof. Given that a person’s liberty is at stake when they are charged criminally, whereas “only” their pocketbook and reputation are on the line when they are sued civilly, it makes sense that proving sexual assault in criminal law is more challenging than doing so in the civil context.
In Canada, the leading decision that explains these differences in approach is the civil decision by the Supreme Court of Canada in Non-Marine Underwriters, Lloyd’s London v. Scalera, 2000 SCC 24. For a more recent application of the principles in a civil context, I suggest the Nova Scotia decision in A.M.S. v. Wootton, 2016 NSSC 351.
Commonalities Between Criminal and Civil Approaches to Consent
There is also consistency in how consent is approached in our criminal and civil justice systems. Both systems are premised on assumptions about individual autonomy and free will, and where it comes to the defence of consent, both are alive to the circumstances that can make these assumptions unreliable.
In criminal law, the principles that define the common law (or judge-made law) of consent have been codified in legislation — namely, the Criminal Code of Canada. In civil law, these principles are the prerogative of the courts to define and modify as they deem appropriate and necessary.
In both systems, for the defence of consent to be given legal effect, the consent must have been freely given and fully informed. This means that what may look on its face to be consensual sexual activity will not necessarily be treated in law as legitimately or legally consensual.
Historically, consent will be invalidated where any of the following is proven:
There was legal incapacity to consent, such as in the case of a minor or a person under disability,
The person said to have consented was under duress at the time,
Force or threat of force was used to compel or extract so-called consent, and
Deceit or fraud was used to compel or extract so-called consent.
It used to be that consent given under the influence of drugs or alcohol was also viewed in law to be invalid. However, the modern approach to consent under these circumstances is a more nuanced one.
Consider the instance of a person who is unconscious when they are touched sexually. That person clearly cannot give free and informed consent to being so touched (nor can they pre-consent while they are conscious).
What about the person who is drunk or under the influence of drugs when they are touched sexually? While the extremes give rise to clear answers, the continuum between the extremes is less clear and highly dependent on the facts. At one extreme, a person so under the influence that they are incapable of understanding or perceiving the situation in which they find themselves will not be capable of giving legally effective consent. At the other extreme, a person who has consumed alcohol or other substances and is drunk or high can consent.
This was explained in the 2017 Toronto police officer case of R. v. Myznik, 2017 ONSC 4392, where the court quoted from an earlier decision that stated:
“Cases where the complainant is said to be incapable [due to] consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision-making, memory loss, loss of inhibition or self control. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at time[s].”
Unique Approach to Invalidating Consent in Civil Cases: Power and Exploitation
The Supreme Court of Canada has developed the common law to provide for a separate, and what has become a widely relied upon, ground for finding that apparent or ostensible consent is not genuine or legally valid consent. This ground is based on public policy considerations and a concern not to legitimize consent that was obtained through the improper exercise of power and exploitation — i.e., was coerced.
To understand this ground for invalidating consent, it is best to do so in the context of the civil case in which the Supreme Court of Canada developed it, Norberg v. Wynrib, [1992] 2 SCR 226. This case involved two adults, an elderly male physician and his young adult female patient. The physician prescribed addictive pain killers to his drug-dependent patient in exchange for sexual favours from her. Both the trial judge and the British Columbia Court of Appeal dismissed the patient’s claim based on sexual assault and battery on the basis of her implied consent (i.e., no force or threats of force were used by the physician, and her drug addiction had not interfered with her capacity to consent to sexual activity).
The Supreme Court of Canada’s disagreement with the lower courts’ reasoning was based on the imbalance of power that clearly characterized this relationship and put into question the patient’s ability to choose freely. The Supreme Court developed a two-step test which, if satisfied, means what may look on the surface to be consent in fact will in law be “vitiated” (or legally invalidated). This test requires:
Proof of “an overwhelming imbalance of power in the relationship between the parties,” which the Court said would ordinarily occur in the context of a “special power dependency relationship,” such as that of parent/child, psychotherapist/patient, doctor/patient, clergy/parishioner, teacher/student, lawyer/client, and employer/employee; and
Proof of exploitation, namely that the defendant abused their power over the plaintiff to advance their own self interest to the detriment of the plaintiff.
Circumstances relied upon by the Supreme Court in Norberg v. Wynrib to determine there was an overwhelming power imbalance undermining the patient’s free will to consent included the following: the patient’s age, gender, limited education and addiction to drugs, contrasted with the doctor’s age, gender, professional status and his specific knowledge of the plaintiff’s addiction (i.e., her vulnerability). The Supreme Court concluded that exploitation had occurred because the doctor had abused his power over his patient and exploited information about her weaknesses acquired while he was supposed to be discharging his professional obligations, and he did so in order to advance his own selfish interests related to his sexual gratification.
The Supreme Court of Canada’s test for determining in civil cases whether what appears to be consent is true consent and how it applied the test on the facts before it demonstrates that the legal validity of consent to sexualized contact will depend on a careful consideration of the nature of the relationship and the comparative circumstances of the parties to that relationship. While the legal test is clear, the conclusion as to whether there was or was not consent will be dependent on the facts.
Since defendants in civil cases bear the onus of proving consent, their lawyers need to be acutely aware of the power dynamics operating between the parties at the relevant times, and particularly at the outset if there was ongoing sexualized contact. They also need to consider whether their client can be said to have exploited some advantage they held over the plaintiff in order to secure “consent.” Where there was inequality that was coupled with exploitation, then the apparent consent will be treated as coerced consent and be of no legal force or effect.
Even if this hurdle to the defence of consent can be overcome for the torts of sexual assault and battery, the defence lawyer must also be mindful whether the defence could falter in relation to another cause of action that may be asserted, such as breach of fiduciary duty. Indeed, there is a line of case law where courts have found that consent operated to defeat liability for the torts of assault and battery, but not for breach of fiduciary duty. This is because of the preeminent importance we as a society attach to fiduciary relationships. Thus, it is conceivable that while a sexualized relationship between adults may be treated as consensual for some purposes, it will not be treated as lawful for other purposes. Examples include where there was sexualized contact between a clergy member and a parishioner, or between a health care or other professional and their client.
The nuances in the defence of consent in the civil context, and its similarities and differences to consent in the criminal context, must be considered by plaintiff and defence lawyers alike. While the case law has clarified the legal framework for consent in civil claims, a fact-specific analysis remains critical to the assessment of liability for the torts of sexual assault and sexual battery.
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Elizabeth Grace Mentioned in The Catholic Register Column
Elizabeth Grace was recently interviewed for a column in The Catholic Register, where she touched on the difference a genuine apology can make in sexual abuse claims within faith communities.
Elizabeth Grace was recently interviewed for a column in The Catholic Register, where she touched on the difference a genuine apology can make in sexual abuse claims within faith communities. 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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SCC Decision Every Sexual Abuse Lawyer Should Know About
Elizabeth Grace recommends that whether it is for negotiation, mediation, motion, pre-trial, trial or appeal purposes, there is one decision every plaintiff lawyer should have on hand: R. v. Friesen, 2020 SCC 9.
Whether it is for negotiation, mediation, motion, pre-trial, trial or appeal purposes, there is one decision every plaintiff lawyer should have on hand: R. v. Friesen, 2020 SCC 9. Although it is a criminal case, this ground-breaking decision by the Supreme Court of Canada has had reverberations — and rightly so — in other areas of the law, including civil sexual abuse claims, family law disputes, child protection cases, and human rights complaints.
Shortly after R. v Friesen was released in 2020, I wrote a blog post in which I stated my belief that this decision’s importance extends far beyond the criminal sentencing context in which it arose — see Canada’s Highest Court Delivers Wake Up Call On Child Sexual Abuse. I wrote there, and have since made this argument in my files, that if one substitutes the word “damages” where the court talks about “sentences” or “sentencing,” the meaning remains as true and relevant to the civil sphere as the criminal one.
Four years later, I feel vindicated in my belief. I now see R. v. Friesen regularly cited in the reported civil abuse case law. It needs to stay this way. Mindsets still need to be changed, and there is no better ally for achieving this than our country’s highest court.
Before describing how civil courts are using R. v. Friesen, let me first summarize some highlights from this remarkable decision.
R. v. Friesen: Highlights
R. v. Friesen involved a young victim of sexual offences. The Supreme Court of Canada addressed the pervasiveness of child sexual abuse and the profound and widespread harms it causes, and it implored those involved in the justice system to treat this problem with more care and sensitivity.
The court opened its landmark 9-0 decision with these strong words: “Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence.”
Through its decision, the court stated:
“[W]e send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm it causes to children, families, and society at large.”
Here are some “takeaways” from R. v. Friesen that I, as a civil litigator practicing in this area for almost three decades, find instructive.
1. Prevalence of child sexual abuse:
The Supreme Court observed that police and the courts are seeing a mushrooming of cases involving sexual violence against children.
New technologies like the internet are enabling new forms of sexual violence against children, and providing perpetrators with new ways to access and control youth. These technologies are also making qualitative changes to these sexual offences; for example, the online distribution of images repeats the original violation by making its victim live with the knowledge that others may be accessing these images in the future.
2. Evolution of understanding:
Just as legislators have been recognizing, adapting, and trying to keep pace with developments in child sexual abuse, the Supreme Court observed that “[c]ourts too have been on a ‘learning curve’ to understand both the extent and the effects of sexual violence against children.” The law has had to and will continue to evolve to respond to its prevalence, and to the different manifestations of the wrong and harms it causes.
3. Characterization of the wrong as violence:
The wrongful nature of child sexual abuse stems from the fact it represents a simultaneous invasion of a child’s personal autonomy, a violation of the child’s bodily and sexual integrity, and an attack on the child’s dignity and equality.
“Violence is always inherent in the act of applying force of a sexual nature to a child,” the Supreme Court said. Whether or not there is additional physical violence and/or physical injuries that accompany such abuse, any physical contact of a sexual nature with a child is “a wrongful act of physical and psychological violence.”
4. Resulting individual and broader harms:
The attack on personal autonomy, bodily integrity, sexual integrity, dignity and equality that sexual abuse against a child represents means courts must consider the resulting psychological harm which will often be more pervasive and permanent than physical harm.
Sexual violence against children “inherently has the potential to cause several recognized forms of harm.” The Supreme Court noted that these are harms that manifest themselves:
1) During childhood, such as self-destructive behaviours, acting out, guilty feelings and shame, lack of trust, low self-esteem, inability to concentrate in school, running away from home, sleep disturbances and nightmares, anxiety, and depression; and
2) During the victim’s adult years, such as difficulty forming loving and caring relationships with others, being prone to engage in sexual violence against children themselves, and struggling with substance abuse, mental illness, PTSD (post-traumatic stress disorder), eating disorders, suicidal ideation, self-harming behaviours, anxiety, depression, sleep disturbances, anger, and poor self-esteem.
Beyond the life-altering consequences that flow to targeted individuals, sexual violence against children has ripple effects, including harm to people who are close to these children and harm to relationships. There is also harm to the broader communities in which the targeted children live, as well as to society as a whole. Noted the Supreme Court:
“Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering … [C]hildren who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood … Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community.”
5. Considerations for sentencing and damages awards:
The Supreme Court directed that courts must impose sentences — and I would add, damages awards — that are commensurate with the gravity of sexual offences against children.
It is not sufficient for courts to simply state that sexual offences against children are serious….courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences.
6. Myths and stereotypes:
R. v. Friesen debunks various myths and stereotypes and warns about not falling prey to common or outdated misconceptions.
Lower courts must reject the common belief that there was no serious harm caused if there was no additional physical violence that caused physical injury. Further, the tendency to downplay the wrongfulness of child sexual abuse or its harm to the victim where the acts did not involve penetration, fellatio or cunnilingus, but instead involved touching or masturbation, has to stop. The notion that the latter kinds of sexual touching are “relatively benign” and thus inherently less harmful is, the Supreme Court said, “a myth that must be rejected.” Why? Because it does not provide any meaningful insight into how the actions were experienced by the targeted child.
“[C]ourts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale… This is an error — there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. As the Court of Appeal for Ontario recognized in R. v. Stuckless, 2019 ONCA 504, physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration… Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. For instance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than an act of fellatio, cunnilingus, or penetration.”
7. The importance of language:
The Supreme Court reminds us that words matter, including those used by lawyers and courts when they deal with child sexual abuse. The use of terms like “fondling” or “caressing” must stop. This is because they implicitly characterize the perpetrator’s conduct as erotic or affectionate, instead of inherently violent. Language like this is misleading and risks normalizing the very conduct that is being scrutinized and condemned.
8. No consent:
A child victim’s “participation” in sexual activity is not de facto consent and should never be treated as a mitigating factor. The court’s clear directive that such participation is not a legally relevant consideration at sentencing should apply equally to damages in civil sexual abuse cases. The Supreme Court appropriately acknowledged that “Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality.” It warned that a victim’s participation should not distract from the harm suffered, and moreover that the absence of additional overt violence, such as weapons, intimidation, and physical injury, does not mean the inherent violence of the sexual abuse of the child should be ignored or downplayed.
Examples of Civil Courts Citing R. v. Friesen
As civil courts across Canada are increasingly required to address child sexual abuse, they are now routinely relying on R. v. Friesen as an authority. Consider the following examples:
1. C.O. v. Williamson, 2020 ONSC 3874 – trial decision; teacher/student sexual abuse; R. v. Friesen cited at paragraph 169 in support of awards for general and aggravated damages in childhood sexual abuse cases increasing over time “as society and the courts have become increasingly aware of the very serious, long-lasting damage caused by such abuse.”
2. C.L.H. v. K.A.G., 2022 BCSC 994 – trial decision; brother sexually abused sister when both were minors; R. v. Friesen cited at paragraphs 299-300 for the inherent potential for harm posed by child sexual abuse.
3. A.B. v. C.D., 2022 BCSC 2145 – application decision; child sexual abuse case involving cross applications for publication bans anonymizing both plaintiff and defendant so they would not be publicly identified; R. v. Friesen cited at paragraph 12 to assist in weighing the interests as stake.
4. C.M.A. v. Blais, 2022 BCSC 214 – default judgment with trial assessment of damages; child sexual abuse by adult family friend; R. v. Friesen cited at paragraph 77 for the inherent potential for harm posed by child sexual abuse.
5. A.B. v. Main, 2023 NSSC 47 – trial decision; child sexual abuse by adult neighbour; R. v. Friesen cited at paragraphs 58-59 for the care that must be taken not to over-emphasize the physical acts that did or did not occur (i.e., whether touching was over or under clothing, or whether it involved penetration). Although the Supreme Court’s comments dealt with criminal sentencing, the trial judge found them “also apt in the civil context.”
6. S.M. v. McNutt, 2024 NSSC 17 – unopposed trial decision; child sexual abuse by hockey coach/teacher; R. v. Friesen cited at paragraph 25 for the proposition that there is not necessarily a correlation between physical severity of sexual abuse and harm to the victim.
7. H.N. v. School District No. 61 (Greater Victoria), 2024 BCSC 128 – trial decision; child sexual abuse by an adult tutor; R. v. Friesen cited at paragraph 2 in reference to evidence establishing that the plaintiff suffered the types of harms in childhood and extending into adulthood often associated with child sexual abuse; also cited at paragraph 216 in the context of considering whether to award punitive damages, with reference to the prioritization of denunciation and deterrence of sexual offences against children.
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Young Age Does Not Excuse Liability of Perpetrators in Civil Lawsuits for Sexual Assault
This article’s focus is on how a criminal conviction can narrow the liability issues that need to be proven in a later civil lawsuit dealing with similar matters.
Criminal law precludes children under the age of twelve from liability. The same is not true for civil claims. While young age is a factor in assessing liability for sexual assault, a perpetrator under twelve can still be held liable in a civil claim.
The Supreme Court of British Columbia decision in CLH v. KAG, 2022 BCSC 994 has confirmed there is no age limit under which children are automatically excused from civil liability for intentional torts, such as sexual assault. In contrast, under criminal law, children under twelve are absolved of liability. This B.C. decision explains that a child’s age may be a factor in determining civil liability as a child’s age may demonstrate they were incapable of forming the intent required to commit an intentional tort.
Civil liability of children tends to attach at a much earlier age than criminal responsibility. However, children have been excused from civil liability in instances where the courts held that the children were too young to have acted with intention. The defendant in the B.C. case was an adult at the time of trial, but was found to have sexually assaulted his sister when he was aged 10 to 16. His sister was aged 6 to 12 at the time. However, the defendant did not assert he was incapable of forming the necessary intent for the tort of sexual assault nor was this finding made by the trial judge.
From a damages perspective, the circumstances of the parties at the time of the abuse in question—which includes their respective ages—is a relevant consideration. The court in the B.C. case held that while the defendant’s young age was a relevant factor, it did not justify an award significantly below the range of damages awarded in other sexual assault cases. Instead, the consequences for the plaintiff of his wrongful behaviour were given primacy.
The court found the detrimental impact of the defendant’s sexual assaults on his sister was substantial, and it awarded non-pecuniary damages of $200,000. Of note, however, the court declined to award punitive damages because the defendant was a child at the time, and it found the denunciation and deterrence aim of punitive damages awards would not be achieved in the circumstance of a child perpetrator of sexual abuse.
While this issue has not been considered in Ontario in recent years, in 1967, the Court of Appeal for Ontario upheld the decision of the trial judge in Tillander v. Gosselin, 1966 CanLII 231 (ONSC) where the court declined to find a 3-year-old liable for physical assault. This was on the basis that a normal 3-year-old could not formulate the genuine intent to do harm or to perform the act that caused the injury.
The takeaway here is that youth at the time sexualized misconduct was committed does not, on its own, insulate that person from civil liability for significant damages. This is an important consideration for plaintiff and defence lawyers alike to keep in mind.
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Family And Intimate Partner Violence – ONCA Renders Landmark Decision In Ahluwalia v. Ahluwalia
We consider the lessons learned from this much discussed and debated case, Ahluwalia v. Ahluwalia, 2023 ONCA 476, after summarizing both the trial and appellate decisions.
Authored by: Erika Tower, Zahra Vaid, and Elizabeth Grace
Last week, the Court of Appeal for Ontario (ONCA) released its highly anticipated decision in Ahluwalia v. Ahluwalia, 2023 ONCA 476. In this blog, we consider the lessons learned from this much discussed and debated case, after summarizing both the trial and appellate decisions.
In short, the decision was an appeal from the judgment of Justice Renu J. Mandhane of the Ontario Superior Court of Justice (ONSC), in a family law proceeding in which she created and applied the novel tort of family violence, and awarded the wife $150,000 for compensatory, aggravated and punitive damages. In our previous blog, we discussed the new tort and Justice Mandhane’s decision at length.
Writing for a unanimous 3-member panel of the ONCA, Justice Mary Lou Benotto determined that the creation of the novel tort of family violence was unnecessary in light of existing torts which adequately address the harms suffered. Although the new tort was not recognized, the decision provided an important opportunity for the ONCA to comment on the complexity of the various forms of violence and abuse that occur in intimate relationships and how they can be addressed by courts in the context of family law proceedings. The decision clearly states that such violence and abuse should be recognized, denounced and deterred, and confirms the jurisdiction of family court judges to render judgments on tortious misconduct in the course of their proceedings.
Background and Lower Court Decision
In this case, the appellant husband and respondent wife were married in 1999 in India. Shortly after their marriage, the couple immigrated to Canada for better opportunities. They arrived in 2002 with their first child and, like many newly immigrated families, had little social and financial support.
The marriage involved significant and serious emotional, financial and physical abuse of the mother at the hands of the appellant father, which led to the couple’s separation in 2016.
The respondent mother subsequently brought an action for statutory relief including divorce, child support, spousal support, and property equalization. She also claimed damages for the husband’s abusive, coercive and controlling conduct during their marriage.[1]
In assessing damages, Justice Mandhane explained that the “no fault” nature of family law must give way where there are serious allegations of family violence that create “independent, and actionable harms that cannot be compensated through an award of spousal support”.[2] She therefore went on to recognize a new tort of family violence. In her view, this was necessary to stay “abreast of social change” and was also consistent with the compensatory goal of tort law.[3]
In characterizing the tort, Justice Mandhane held that a plaintiff could establish, through specific and particularized conduct, a defendant’s liability for the tort in the following ways:
intentional conduct that was violent or threatening;
behaviour calculated to be coercive and controlling to the plaintiff; or
conduct the defendant would have known with substantial certainty would cause the plaintiff to subjectively fear for their own safety or that of another person.[4]
To establish liability, Justice Mandhane stressed there needed to be a “pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessities of life, psychological abuse, financial abuse, or killing or harming an animal of property”.[5]
In her view, the tort was necessary as existing torts, like assault and battery, did not “fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence”.[6]
After finding liability under the tort of family violence, Justice Mandhane assessed damages at $150,000: $50,000 each for compensatory, aggravated and punitive damages. She then considered the statutory claims and determined that the appellant mother was entitled to the entire proceedings of sale from the matrimonial home.[7]
Ontario Court of Appeal
The appellant husband appealed and asked that the ONCA reject the creation of a new tort. While he conceded some liability, his concession was related to liability for existing torts that Justice Mandhane found in the alternative (i.e., torts of assault, battery, and intentional infliction of emotional distress). He argued that the tort of family violence was “poorly constructed, too easy to prove, and would apply to a vast number of cases and create a floodgate of litigation that would fundamentally change family law”.[8]
The appellant wife argued in response that a novel tort was necessary as existing torts “did not address the cumulative pattern of harm caused by family violence”.[9] However, she proposed a narrower tort of “coercive control”, which would be made out where a person, in the context of an intimate relationship inflicted a pattern of coercive and controlling behaviour that cumulatively was reasonably calculated to induce compliance, create conditions of fear and helplessness, or otherwise cause harm.[10]
The ONCA without question recognized the significance of intimate partner violence, citing the statistic that nearly half of women and one third of men in Canada have experienced intimate partner violence, and it acknowledged the widespread and intergenerational effects of this kind of abuse. However, the issue before it was whether a new tort of family violence was required to address the problem, or existing alternative remedies were sufficient. The short answer was: “existing torts are flexible enough to address the fact that abuse has many forms” and, therefore, the creation of a new tort of family violence is not necessary.
The creation of a new tort of coercive control was also rejected, and the ONCA took particular issue with the submission that the tort as proposed would not require proof of actual harm, but rather must only involve conduct calculated to cause harm.
According to the ONCA, the torts of battery, assault, and intentional infliction of emotional distress are able to recognize the patterns of behaviour that constitute intimate partner violence, for the purposes of both liability and damages. It also noted with approval that a “pattern” of abuse has previously been used to justify higher damages awards through these existing torts. The ONCA provided a lengthy and helpful discussion of how each of these torts sufficiently addresses such patterns of abuse.
Importantly, the ONCA concluded that it was not a mistake that the trial judge included a tort claim in a family law proceeding, and the compensatory damages awarded were appropriate. However, the ONCA allowed the appeal of the punitive damages award of $50,000, as the trial judge failed to make any finding that an award of general and aggravated damages was insufficient to achieve the goals of denunciation and deterrence. The wife’s damages were therefore decreased on appeal to $100,000, from $150,000.
Comment and Discussion
A Message to the Family Law Bar
Although the ONCA rejected the creation of a new tort of family violence, one of the key takeaways from its decision is its explicit confirmation that tort claims can properly be included in family law proceedings, and significant damages can be awarded.[11]
This acknowledgment is crucial, as many survivors of intimate partner violence only consider civil remedies after the conclusion of their family law claim. This can be inefficient and costly, and judgments more difficult to satisfy after assets have been divided and distributed. Having family law and civil law issues dealt with together avoids duplication of effort and resources, and streamlines the process and outcome.
There are other advantages to addressing tort claims within the family courts. For example, there is a more detailed and fulsome disclosure of assets and income in family law proceedings that is not generally available in a civil proceeding. Given the increasingly resolution-based nature of the family law system, litigants are often focused on reaching a final resolution, to achieve certainty and finality, and allow them to move forward with their respective lives.
The acknowledgment and discussion provided by the ONCA of the pervasiveness and seriousness of the various forms of violence and abuse that occur in intimate relationships is also extremely valuable and can be cited and relied upon in future proceedings involving intimate partner abuse. For example, it is recognized that recurring and ongoing abuse, intimidation, domination and financial abuse can become patterned into daily life, and trial judges need to be alive to these dynamics. It is also clearly stated that where any form of abuse leads to psychological injury, compensation is warranted.
A New Benchmark for Damages
In upholding the compensatory and aggravated damages of $100,000 awarded by the trial judge, the ONCA created a new benchmark for damages in cases involving intimate partner violence. It specifically recognized that the trial judge’s damages assessment was based on the depression and anxiety experienced by the respondent wife as a result of the abuse, the “overall pattern of coercion and control and clear breach of trust”, as well as the ways the appellant husband preyed upon the wife’s vulnerability as a new, racialized immigrant to Canada, which made it difficult for her to meet their children’s daily needs.[12] The ONCA justified the high award in light of society’s “emerging understanding of the evils of intimate partner violence and its harms”.[13]
While it remains to be seen whether leave to appeal to the Supreme Court of Canada will be sought, and if so, granted (we think it unlikely), Ahluwalia has generated significant and valuable discussion among the family and civil bars and the judiciary about the intersection of civil and family law proceedings in the context of allegations of intimate partner violence.
A clear message has emerged: intimate partner violence is serious, and it will no longer be rare or exceptional for claims for damages arising out of such allegations to be included in family court proceedings.
[1] Ahluwalia v. Ahluwalia, 2023 ONCA 476 at para. 16
[2] Ibid at para. 17.
[3] Ibid at para. 19-20.
[4] Ibid at para. 23.
[5] Ibid at para. 24.
[6] Ibid at para. 23.
[7] Ibid at paras. 26-28.
[8] Ibid, at para. 29.
[9] Ibid, at para 33.
[10] Ibid, at para 34.
[11] Ibid, at para. 46.
[12] Ibid, at para 127.
[13] Ibid, at para. 128.
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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.
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.
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.
Our Response To A Recent Statement Issued To Parents By The CDSBEO
Lerner LLP’s sexual abuse team is currently representing a survivor in a claim against a teacher based on abuse that occurred when our client was a student at St John Catholic School in Perth.
The Catholic District School Board of Eastern Ontario (CDSBEO) recently issued a statement to parents. The statement relates to an historic incident of sexual abuse involving a student, by a former occasional teacher named Edward (Ted) Michael Oliver who was employed by the board at St John Catholic High School in Perth Ontario, in 2006.
Our sexual abuse team is currently representing a survivor in a claim against this teacher based on abuse that occurred when our client was a student at St John Catholic School in Perth.
We are also representing other survivors of historic sexual abuse who were former students of St John Catholic High School in Perth. This includes a survivor of sexual abuse by history teacher Jeffrey (Jeff) L. Peters, who was criminally convicted for his misconduct against her.
Recently, the media reported on a third teacher, David Alexander Giroux, also from St John Catholic High School in Perth, who has been charged with sexual offences involving a minor.
If you, or someone close to you, has been sexually assaulted or abused, and would like to know about available legal options, please call us or email us for a free, completely confidential consultation.
We specialize in guiding survivors through the legal process with respect, sensitivity, and compassion, and work to fearlessly pursue the vindication, accountability, and closure survivors deserve.
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.
Criminal Conviction Advantageous For Subsequent Civil Lawsuit: Latest On Summary Judgment In Sexual Assault Cases
This article’s focus is on how a criminal conviction can narrow the liability issues that need to be proven in a later civil lawsuit dealing with similar matters.
In sexual abuse and violence cases that are pursued in the civil courts, it is common for there to have been a prior criminal proceeding involving the same parties and factual issues. Many survivors are unaware that the civil justice system provides an alternative, or an additional, means of recourse and accountability. As a result, they often go directly to the police, thinking the criminal justice system is the only option available to them. Other survivors make a deliberate choice to report first to the police and then go through a criminal proceeding before becoming plaintiffs and pursuing a civil remedy.
In a previous blogpost, a posted article, and a video, I explained key differences between criminal and civil proceedings based on sexual assault allegations and how the two systems of justice – criminal and civil – interact. Here, my focus is on how a criminal conviction can narrow the liability issues that need to be proven in a later civil lawsuit dealing with similar matters.
The recent decision, Lambert et al. v. Lambert, 2022 ONSC 6432, by Regional Senior Justice Mark Edwards serves as a timely reminder that a conviction can dispense with the need to prove an individual defendant’s liability (or legal responsibility) in a civil lawsuit.
In Lambert v. Lambert, the defendant pled guilty to three counts of indecent assault against three family members. Afterward, two of these family members (daughters of the defendant) sued their father by bringing a civil claim. Despite his guilty plea in the criminal proceeding, the father, in his civil Statement of Defence, put forward a complete denial of any wrongdoing.
The plaintiff daughters went to court seeking partial summary judgment on their father’s civil liability. They wanted their father’s legal responsibility for abusing them determined summarily on the basis of his prior conviction, so only the issues of damages and what caused their damages would be left to be determined at trial. The Ontario Court of Appeal in Butera v. Chown Cairns LLP, 2017 ONCA 783 has said partial (as opposed to full) summary judgment will only be granted in rare cases. In Lambert v. Lambert, Edwards RSJ granted the plaintiffs’ motion, while acknowledging that partial summary judgment is reserved only for the “clearest” of cases. The judge found the case before him was one of those clear cases.
In explaining his decision to grant partial summary judgment, Edwards RSJ said, “Plaintiffs who are victims of sexual assault should know at the earliest opportunity that the issue of liability is a non-issue… It is equally important that the defendant understand now, and not later, that liability is no longer an issue.” In granting the motion, the judge said it would be “a rare case where partial summary judgment would not be granted” in circumstances like the ones before him.
Of course, as confirmed by Edwards RSJ, even after liability stops being an issue for resolution because summary judgment on liability has been granted, the plaintiffs must still prove their damages and what caused these. Likewise, if there are other defendants besides the individual defendant who has been criminally convicted, the liability of those defendants will remain to be determined.
It should be noted that Lambert v. Lambert involved a conviction arising from a guilty plea. In law, a guilty plea is an admission of wrongdoing by the accused person. Previously, the Ontario Court of Appeal in Franco v. White 2001 CanLII 24020 upheld a decision to grant partial summary judgment on liability in a sexual assault case in which the accused had entered a plea of “not guilty” and then faced a trial on the merits that resulted in a verdict of “guilty” by the jury.
Here are some “takeaways” from Franco v. White and Lambert v. Lambert, as well as my own years of experience litigating these kinds of cases, that are aimed at helping the reader navigate whether to bring or resist a motion for partial summary judgment on liability in a civil sexual abuse case that follows a conviction (that has not been successfully appealed) in a criminal case involving overlapping parties and issues:
1) Section 22.1 of the Ontario Evidence Act provides that proof of a person’s conviction is proof in another subsequent proceeding that the criminal offence was, in fact, committed by that person unless there is evidence to the contrary. In short, the Evidence Act creates a statutory presumption of wrongdoing in the face of a conviction. This has also been described as giving rise to prima facie proof (to be distinguished from conclusive proof) of the fact of guilt in a later civil proceeding. Other jurisdictions in Canada have similar provisions in their respective Evidence Acts.
2) Proof of a person’s prior conviction is proof not only of the guilty finding, but also of the “essential facts” underlying the criminal offence for which the person was found guilty – i.e., that the person committed certain unlawful acts with the state of mind (or intent) necessary to result in criminal guilt for the particular offence.
3) As a result, convicted defendants cannot re-litigate the essential facts underlying the criminal offence. This means they cannot lead evidence to contradict the key facts behind their convictions.
4) However, the statutory presumption of wrongdoing created by the Ontario Evidence Act (and other Evidence Acts across Canada) can, in certain circumstances, be rebutted (or countered). As the Ontario Court of Appeal in Franco v. White said, “Summary judgment does not follow automatically upon a criminal conviction if the defendant can show that despite the conviction, there is an issue to be tried.” The courts have accepted that defendants may rebut the presumption of wrongdoing to which a conviction gives rise. To do so, they will need to adduce compelling evidence that, in the context of a summary judgment motion, gives rise to a triable issue or, if at trial, is sufficient to discharge the defendant’s rebuttal onus of proof. Examples of where the effect of a conviction may be successfully rebutted are where the conviction was vague, and there was not sufficient similarity between the facts giving rise to the civil claim and those underlying the conviction, or where a defendant lacked adequate incentive to fully defend a minor criminal charge, and it would be unfair to hold the defendant to that result when facing more serious consequences from a civil action. The case law suggests it will be rare for a court to look behind a criminal conviction and find it cannot be relied upon in a subsequent civil proceeding. Certainly, a previously convicted defendant cannot simply repeat their plea of not guilty and assert a blanket denial of the allegations, and expect this to be sufficient to rebut the presumption of guilt. More than this is required.
5) The documents from the criminal proceeding that civil lawyers on both sides need to collect and rely upon to prove (or rebut) the presumption of wrongdoing in the civil proceeding include:
(a) A certificate of conviction (see s. 22.1(3) of Ontario’s Evidence Act, which addresses how to prove a conviction);
(b) In the case of a guilty plea, the transcript of the criminal proceeding that includes the agreed statement of facts, the judge’s reasons for guilty verdict, and the judge’s reasons for sentence; and
(c) In the case of a contested trial on the merits, the transcript of the criminal proceeding that includes the judge’s jury charge and the jury’s verdict (where it was trial by jury), and in a trial by judge alone, the judge’s reasons for conviction, and the judge’s reasons for sentence. (See s. 5 of Ontario’s Evidence Act which addresses admissibility of transcripts and s. 36(1) for when judicial notice can be taken of a judicial document like a judge’s reasons, order, and judgment.)
6) For plaintiffs and their lawyers, there is good legal authority for shortening the civil litigation process by, in effect, taking a big (and often difficult) piece of what has to be proven – namely, the factual allegations of the assault(s) that underpin civil liability – out of the equation. This potentially means a more streamlined litigation process, including a narrower scope for documentary and oral discovery of the plaintiff and a shorter and less distressing process for the plaintiff, who will not be called upon to repeat and re-live the details of what happened through oral examination for discovery, a defence medical examination, and/or at trial through their testimony.
7) However, there are many practical considerations that plaintiffs and their lawyers will need to bear in mind when deciding whether to move for partial summary judgment on liability. These include:
(a)Whether this means they must confine the causes of action pleaded in their Statement of Claim to those that most closely resemble the elements of the criminal offence for which the defendant was convicted, or abandon certain causes of action that introduce new elements that will have to be separately proven to establish liability. In Franco v. White, for example, the plaintiff on the summary judgment motion made a strategic decision to abandon her claims for breach of trust, negligence, and intentional infliction of mental suffering asserted in her Statement of Claim and to limit her claim to one for civil sexual assault. In some cases, restricting the claim made to what aligns most closely with the criminal offence on which the conviction was based will not capture the full extent of the wrongdoing and its impacts;
(b) Whether removing liability from the equation might unduly narrow the defendant’s documentary and oral discovery obligations
(c) Whether the conviction is based on facts that do not cover the full range of factual allegations in terms of types and nature of occurrences and potentially aggravating factors, like threats, violence, breach of trust, and being made to submit to particularly degrading or humiliating acts. If so, there will be good reason not to pursue partial summary judgment, so the full scope of the wrongdoing is before the court when it assesses damages;
(d) Remember that a plea of “guilty” is often based on an agreed statement of facts, which reflects a compromise between the Crown and the accused person. Such a statement will need to be reviewed carefully to determine what was omitted, and how any omissions may detract from the plaintiff’s civil claims for liability and damages;
(e) Whether, in order to prove compensatory damages in the civil proceeding, evidence with respect to the facts of what happened are necessary and helpful to the plaintiff’s case;
(f) Whether, in order to overcome the impediments to punitive damages where there has been a prior conviction (see T. v. D.T., 2021 ONSC 5926 for the guiding principles in this regard), it is necessary to adduce evidence as to what exactly occurred and how, for example, this extended beyond the facts supporting the criminal conviction; and
(g) Whether defence counsel will voluntarily agree to limit discovery of the plaintiff to the issues of damages and their causes. If the Statement of Defence contains a complete denial of wrongdoing despite the prior conviction, determine whether it is worth trying to reach an agreement with the defence lawyer(s) that they will not question the plaintiff on what happened, and will agree to limit their examination to what impacts the assaults (and other events) had on the plaintiff.
For convicted defendants and their lawyers, the following should be considered from the outset:
(a) Whether a blanket (or complete) denial of liability in a Statement of Defence, response to a motion for summary judgment on liability, and/or Request to Admit is advisable, bearing in mind that doing so could give rise to additional damages being awarded against the defendant for their refusal to accept the guilty verdict and their lack remorse and/or an unfavourable cost award for prolonging the litigation;
(b) If the allegations in the civil lawsuit extend beyond the essential facts on which the criminal conviction was based, then consider asserting a partial denial of liability in which only the allegations of fact that extend beyond those that were foundational to the conviction are disputed;
(c) If evidence to rebut the statutory presumption of wrongdoing that arises from a conviction is available, be sure to plead the relevant facts in the Statement of Defence and to adduce this evidence in response to a motion for partial summary judgment on liability and/or to lead it at trial; and
(d) If the presumption of wrongdoing from the conviction is unassailable, then look for ways to shorten the litigation and its associated expense by conducting an examination for discovery of the plaintiff that is focused on damages (and telling the plaintiff’s lawyer in advance that this is the intent), and looking for early opportunities to settle the action.
Unlike a prior acquittal which is not relevant nor admissible in a civil case (see, for example, Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427), a prior conviction has many implications for a later civil lawsuit involving the same parties and essential facts. The potential for summary judgment on liability is just one of these implications. Our courts have made it clear that a criminal conviction can be advantageous for plaintiffs in a later civil action, as it may dispense with the need to prove liability against convicted defendants. The decision to proceed with a motion for partial summary judgment and what position to take in response to such a motion are matters deserving careful and strategic consideration by the parties to a civil lawsuit and their lawyers.
While a prior conviction is by no means a prerequisite to pursuing a civil remedy for sexual abuse and violence, where a conviction does exist, whether based on a guilty plea or a trial verdict of guilty, it will usually allow plaintiff survivors to move through the civil process towards resolution and some closure, more efficiently and confidently. For defendants – both those who have been previously convicted and others who may share legal responsibility for the wrongdoing – a prior criminal conviction can offer opportunities for a more streamlined and cost-effective resolution of a civil matter.
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Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
CCLISAR’s Submission On Bill 26 To The Standing Committee
CCLISAR’s submission addressed Bill 26’s provisions which aim to legislatively restrict NDAs where students have been sexually abused.
On November 22nd, written and oral submissions were made to the Standing Committee on Social Policy regarding Ontario’s Bill 26, which addresses the use of Non-Disclosure Agreements (“NDAs”) related to sexual abuse in the context of post-secondary education.
As a member of the Canadian Centre for Legal Innovation in Sexual Assault Response (“CCLISAR”)’s advisory committee, Elizabeth Grace, a recognized expert in the area of civil liability for sexual abuse, was a signatory of the following submission. CCLISAR’s submission addressed Bill 26’s provisions which aim to legislatively restrict NDAs where students have been sexually abused.
CCLISAR is an independent, charitable organization that works to aid survivors of sexualized violence by researching the barriers and perceived barriers to reporting sexual assault and adjudicating claims of sexualized violence. Through this research, the organization hopes to better understand how the experiences of survivors of sexual assault are affected by Canada’s laws and policies.
CCLISAR’s submission on Bill 26 to the Standing Committee praises this first step to limit the use of NDAs in Ontario, and makes recommendations for additions to the Bill to improve access to justice for survivors of sexual abuse and enhance accountability where this abuse is determined to have occurred.
***
Attention:
Vanessa Kattar, Committee Clerk
Goldie Ghamari, MPP for Carleton, Committee Chair
France Gélinas, MPP for Nickel Belt, Committee Vice-Chair
Dear Chair Ghamari, Vice-Chair Gélinas and Committee Members,
RE: Submissions on Bill 26, Strengthening Post-Secondary Institutions and Students Act, 2022
We write with submissions on Bill 26 and, in particular, on proposed sub-section 16.1(5) of Schedule 1 and sub-section 32.0.1(5) of Schedule 2, both of which aim to legislatively restrict non-disclosure agreements (“NDAs”). Overall, we commend this first step to limit, by statute, the use of NDAs in Ontario.
The Canadian Centre for Legal Innovation in Sexual Assault Response
The Canadian Centre for Legal Innovation in Sexual Assault Response (“CCLISAR”) is a charitable and non-partisan organization that seeks to better understand the gap between Canada’s laws and policies and its effects on the social problem of sexual harm and the experiences of survivors of sexualized violence. This includes research into the barriers and perceived barriers to reporting sexual assault and effective mechanisms and design frameworks for adjudicating claims of sexualized violence. CCLISAR as an organization has engaged in research and education with respect to NDAs, which has included assessing problems associated with their use in Canada, the legislative efforts to date in this country and elsewhere in the world to restrict them, and the risks and benefits of prohibiting NDAs. A year ago, prompted by Prince Edward Island’s then emerging legislation on NDAs, CCLISAR convened a cross-country panel of legal experts to consider the nature and scope of NDAs in Canada and how to craft solutions to the problems posed by NDAs. For the Committee’s review and consideration: CCLISAR’s recent Position Statement on Legislation Prohibiting Non-Disclosure Agreements is available online.
Joanna Birenbaum is CCLISAR’s Director of Capacity Building and Elizabeth Grace is a member of CCLISAR’s Advisory Committee. We are also both legal practitioners in Ontario with many decades of collective experience in the areas of civil litigation and administrative/regulatory processes and remedies for sexual abuse and violence, which include investigations into sexualized misconduct allegations in contexts like the post-secondary educational sphere. Joanna (called to the Ontario bar in 1998) is a litigator with expertise in multiple areas of law related to sexualized violence, including representing survivors in civil sexual assault claims, anti-slapp applications, and sexual history and records application in criminal proceedings. She prosecutes sexual abuse discipline hearings for a regulated health college and has been the chair of three CCLISAR Independent Review Panels of University sexual violence policies and practices (the reports from these reviews are available here). She is also the co-author of the recent book, Achieving Fairness: A Guide to Campus Sexual Violence Complaints (2020). Elizabeth (called to the Ontario bar in 1995) is a partner of the law firm Lerners LLP, an experienced civil litigator in the sexual abuse field on behalf of plaintiffs and defendants, and an author and co-author of multiple publications in the abuse area, including the seminal book Civil Liability for Sexual Assault and Violence in Canada (2000). In May 2015, she participated in making written and oral submissions for law reform to Ontario’s Select Committee on Sexual Violence and Harassment.
Scope of submission
This submission addresses only the NDA-related proposed amendments to the Ministry of Training, Colleges and Universities Act, 1990 (Schedule 1) and the Private Career College Act, 2005 (Schedule 2) regarding sexual abuse at post-secondary educational institutions, as outlined in Bill 26.
Generally, we welcome legislative amendments that enhance protections for post-secondary students who are subject to sexual abuse by employees of post-secondary institutions and we support the NDA-related aspects of Bill 26. We are also heartened to see that Ontario is taking a first step to prohibit NDAs, since these are often used as a tool to silence survivors of sexualized violence and to prevent accountability by institutions and (alleged) abusers. The fact Ontario has chosen to start by introducing legislative reform in the post-secondary context, where there is a pronounced power-imbalance between students and employees like professors and instructors, is a positive development. We trust this important initiative will be followed by consultation with stakeholders and, ultimately, further legislated restrictions on NDAs in other contexts. Consistent with CCLISAR’s attached Position Statement, we support a nuanced approach to NDA prohibitions. We believe parts of Bill 26 should be revised to improve access to justice for postsecondary student survivors of sexual abuse and to promote institutional and (alleged) abuser accountability, and in this connection make the following observations and recommendations.
1. The word “investigator” is missing and should be added.
The proposed amendments at sub-s. 16.1(5) in Schedule 1 amending the Ministry of Training, Colleges and Universities Act, 1990 and at sub-s. 32.0.1(5) in Schedule 2 amending the Private Career College Act, 2005 provide that agreements between an institution and “any person” shall not contain any term that prohibits the institution from:
“disclosing the fact that a court, arbitrator or other adjudicator has determined that an employee of the institution has committed an act of sexual abuse of a student of the institution…” [emphasis added].
This provision does not explicitly include an internal or external investigator and the determinations resulting from their investigation. Presumably an “adjudicator” would include an adjudicative body like the Human Rights Tribunal of Ontario, but it is unclear whether it would extend to an investigator who is tasked with assessing credibility, applying legal principles, and making findings. The term “adjudicator” is not defined either in the proposed amendments or in the legislation being amended. This leaves ambiguity as to whether an “investigator” under a post-secondary institution or private career college sexual violence policy will be captured by this language.
This apparent oversight is of concern given that a large number of sexual abuse complaints arising in post-secondary educational contexts are resolved by way of internal and/or external investigations, often followed by settlement agreements between the institution, the (alleged) abuser and/or the complainant. These investigatory and resolution processes often do not escalate to the level of involving courts, grievance or other forms of arbitration, or formal adjudications by administrative tribunals. Without the explicit inclusion of “investigators” in the proposed amendments, survivors may be left without the protections the legislation seeks to introduce, sexual abuse that has been determined to have occurred may continue to be concealed through the tool of NDAs, and institutions and abusers may not be held accountable.
Recommendation: We therefore recommend that sub-s. 16.1(5) in Schedule 1 and sub-s. 32.0.1(5) in Schedule 2 be revised to include explicit reference to “investigator”.
2. Provisions preventing disclosure of the student-survivor’s identity and accounting for the student-survivor’s NDA preference should be added.
Bill 26 marks a first step in Ontario to addressing NDAs in the context of sexual abuse. This follows other legislation passed in Prince Edward Island and introduced in Nova Scotia and Manitoba that prohibits settlements that silence survivors from speaking about their experiences related to sexualized violence. Bill 26 instead prohibits institutions from insisting on, or agreeing to, confidentiality as a term of settlement. This is a good and valid approach that we support. However, we recommend revisions to expand the proposed language, as follows.
First, Schedules 1 and 2 should include explicit language stating that institutions and persons related to the institution, including the individual employee found to have committed sexual abuse, must not disclose the student’s name or identifying information, except with the student’s express and informed permission.
Second, the proposed legislation applies to “[a]n agreement between an institution and any person”, including the student-survivor. This would mean that where a survivor declares an intention to bring, or brings, a claim against an institution following a finding of sexual abuse by an investigator or other adjudicator, the institution may not commit to keeping the fact of this finding and the identity of the perpetrator confidential. However in narrow and defined circumstances, a survivor-complainant should be allowed to have their preference for a NDA respected. In this connection, we note other jurisdictions in Canada with actual or proposed legislation restricting NDAs have provisions that carve out exceptions to NDA prohibitions, where it is the express wish and preference of the survivor-complainant and not contrary to the public interest. This exception is missing from Bill 26. A blanket prohibition of the kind found in Bill 26 does not consider the varying circumstances and needs of survivors. There are numerous reasons why a survivor of sexual abuse may wish to enter into an NDA, including but not limited to reputational, safety, reprisal and professional concerns.
Third, given that sexualized violence is fundamentally about the abuse of power, it is essential that where a determination of sexual abuse is made following a complaint by a student, the student-complainant not have more power taken from them. They should have a say and be given a reasonable opportunity to obtain independent legal advice (ILA) via Ontario’s existing and government-funded ILA program for sexual abuse or other means. In this way, they can make an informed decision without risk of undue influence or coercion about their position regarding disclosure of their own identity and the potential advantages and disadvantages of a NDA in their particular situation.
Recommendation: We therefore recommend that language be added to Schedules 1 and 2 to prohibit the institution and any person related to the institution, including the individual employee found to have committed sexual abuse, from disclosing the student-survivor’s name or identifying information, except with the student’s express permission. We also request the addition of an exception that allows for NDAs in circumstances where it is the express wish and preference of a complainant-survivor whose allegations of sexual abuse have been determined to have merit by an adjudicator or investigator. Lastly, we favour explicit reference in the legislation to (i) a survivor’s right to obtain independent legal advice should they wish their identity to be disclosed or want a NDA, and (ii) a requirement that institutions advise survivors of this right and of the availability of government-funded ILA to assist them in their decision-making. While we do not endorse specific language of any particular or proposed legislation in Canada, we emphasize the importance of an approach that promotes greater access to justice for survivors of sexualized violence and greater accountability by those who have been determined to have committed sexual abuse and, where applicable, the institutions which have employed or otherwise facilitated the commission of the abuse.
Finally, we would be remiss if we did not comment on the narrow scope of Bill 26. NDAs should be regulated beyond the post-secondary educational sphere. We strongly encourage the Government of Ontario to introduce legislation, after consultation with stakeholders including legal practitioners and organizations that work with sexual assault survivors, that restricts the use of NDAs in respect of claims of sexualized violence in all contexts (for example, in institutional settings beyond the post-secondary education sphere).
Thank you for this opportunity to have input into Bill 26.
The Canadian Centre for Legal Innovation in Sexual Assault Response
Per:
Joanna Birenbaum, Director of Capacity Building
Per:
Elizabeth Grace, Advisory Committee member
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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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Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
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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Death Knell Of Limitations Defence In Sexual Assault, Courtesy Of Harvey Weinstein
Elizabeth Grace makes a plea to defence lawyers in Ontario that they finally acknowledge and accept the breadth and meaning of the provisions in the Limitations Act that apply to sexual abuse and misconduct, and they stop asserting statutory limitation period defences.
I don’t understand why, but I continue to see Statements of Defence that plead limitations defences in sexual abuse cases. Lawyers for institutional and individual defendants alike don’t seem willing to let go of an antiquated defence that no longer has any validity in Ontario.
It is now five years since significant amendments were made to Ontario’s Limitations Act, and it still bears repeating: There is no, I repeat no, statutory limitation period in Ontario for any claim arising from or relating to sexual abuse, no matter who that claim is against. Indeed, there has not been one since at least 2016, and arguably since the predecessor Limitations Act came into effect in 2004, although that iteration of the Act admittedly had some complicated exceptions and twists to it.
Long gone are the days when plaintiff lawyers practicing in the area of sexual abuse had to contend with a 4-year statutory limitation period for assault and battery, six years for negligence, none for breach of fiduciary duty, and a common law discoverability doctrine that the Supreme Court of Canada, in its ground-breaking decision in the civil incest case M.(K.) v. M.(H), 1992 CanLII 31, refined to apply to the sexual abuse context.
Ontario’s limitations regime in all respects, but especially in claims relating to sexual abuse, is now a much simpler and easier one to work with than when I first start to practice twenty-five years ago. Junior lawyers practicing in the abuse area will never appreciate the contortions that used to happen – on both sides of the fence – and more senior lawyers versed in the old ways need, frankly, to wake up and appreciate that times have changed. Our limitations laws have adapted to reflect society’s increased awareness of the prevalence of sexual assault, especially against women and children, the deep harms it causes, and to reduce the already heavy burden on those seeking justice and redress for historical wrongs they have suffered.
Recently, I came across a short, but instructive decision by Justice Patrick Monahan of Ontario’s Superior Court of Justice that nicely makes my point: Jane Doe v. Weinstein, 2018 ONSC 1126 (CanLII). I must have been busy or preoccupied when it was first released, as I missed it, but given the players involved, including Harvey Weinstein as the primary offending party, a Miramax movie shot in Toronto in 2000, and lawyer Marie Henein of Jian Ghomeshi notoriety acting for the plaintiff, rather than for a criminally accused client, it must have received some attention at the time.
In short, the plaintiff under the pseudonym Jane Doe sued not only Harvey Weinstein and some well known corporate entities in the entertainment field, but also a Barbara Schneeweiss, said to have been an assistant to Weinstein who did not actually sexually assault the plaintiff but did facilitate Weinstein’s sexual assaults. The claims against Ms. Schneeweiss were for intentional infliction of mental injury, negligence, negligent misrepresentation and negligent infliction of nervous shock.
Ms. Schneeweiss moved to strike the claims made against her in the Statement of Claim. She did so on various grounds, including that these claims were all statute-barred because they fell outside of the 2016 amendments to the Ontario Limitations Act that eliminated limitation periods for sexual assault.
A brief interlude is needed here to explain the pertinent provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
First, it bears remembering that the term “assault” is defined in s. 1 of the Act to include a battery, which in plain English means an unwanted or non-consensual touching.
Second, sub-sections 16(1)(h) and (h.1), (1.1) and (1.3) are the operative provisions in any case related to sexual assault or sexual misconduct.
To paraphrase, the essence of these provisions is as follows:
There is no limitation period in respect of “a proceeding based on a sexual assault” (s. 16(1)(h)). Note: There is no limitation period for “a proceeding”, and a proceeding may and usually does include within it various claims asserted against various parties. Also, this does not read “for sexual assault”; it reads “based on a sexual assault”, which is broader than “for” and means arising or derived from.
There is also no limitation period in respect of “a proceeding based on any misconduct of a sexual nature if…the person who committed the misconduct…was in a position of trust or authority in relation to the person with the claim”, or if the person with the claim was “financially, emotionally, physically or otherwise dependent” on the person who committed the misconduct (s. 16(1)(h.1)). Note: Again, the language here is expansive. “Misconduct of a sexual nature” captures a broad array of wrongful behaviour that extends beyond actual non-consensual sexual touching to include verbal, written and on-line forms of sexual harassment, intimidation and abuse. The focus on the nature of the relationship between the parties is also an indication that one is to look beyond titles or labels to the real power dynamics operating as between the parties.
So long as a proceeding against a non-offending party is “in relation to” a sexual assault, it will not be time-barred, and for added clarity, the Limitations Act states that this rule “includes” claims for negligence, breach of fiduciary duty or any other duty, or for vicarious liability (s. 16(1.3)). Note: This captures proceedings involving, and thus claims against, third parties – meaning individual and institutional defendants other than the actual perpetrator of the sexual assault or sexualized misconduct, who are alleged to have facilitated or enabled the wrongful conduct through their own negligence or other fault-based conduct, or who are said to be liable by operation of the no-fault doctrine of vicariously liable.
The above rules have retroactive and restorative effect because they apply “whenever the Act on which the claim is based occurred and regardless of expiry of any previously applicable limitation” (except where there was a dismissal and the time for appeal has lapsed, or where there was a legally binding settlement) (s. 16(1.1)). By restorative, I mean these rules restore or revive a claim that had previously expired under an old limitation period.
The judge hearing the motion to strike in Jane Doe v. Weinstein made it clear: Where a proceeding involves a claim for civil liability that arises from or is related to a sexual assault, that claim will not be time-barred under Ontario’s Limitations Act. As Monahan J. said about all of the claims against Ms. Schneeweiss:
Although [these] are not for the sexual assaults themselves, they all involve civil liability for actions that relate directly to Weinstein’s sexual assaults on [the plaintiff]. Schneeweiss is said to have facilitated the assaults, with knowledge, recklessness or indifference to the consequences for [the plaintiff]. Thus, all of the allegations against Schneeweiss in the Claim are “in relation to” Weinstein’s assaults and are not statute-barred. [para 27]
So, my plea to defence lawyers in Ontario is that they finally acknowledge and accept the breadth and meaning of the provisions in the Limitations Act that apply to sexual abuse and misconduct, and they stop asserting statutory limitation period defences. These defences no longer exist. If in doubt, read the court’s decision in Jane Doe v. Weinstein, which sounded the death knell of the limitations defence for sexualized wrongs and associated actionable conduct.
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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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