LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
Trends In Civil Sexual Abuse Awards: Part 1
In the first installment of a two-part series on advancing damages in sexual assault claims, Toronto civil sexual abuse lawyer Elizabeth Grace discusses how one recent decision has increased the range for non-pecuniary damages in single incident adult female cases.
In the first installment of a two-part series on advancing damages in sexual assault claims, Toronto civil sexual abuse lawyer Elizabeth Grace discusses how one recent decision has increased the range for non-pecuniary damages in single incident adult female cases.
In an area of law where the significant harms caused by sexual assault and misconduct have been chronically undervalued, a recent Ontario Court of Appeal decision is “significant,” says Toronto civil sexual abuse lawyer Elizabeth Grace.
“There are many reasons why civil sexual assault damages have been historically undervalued,” says Grace, partner with Lerners LLP. “Often there are psychological harms that are ‘invisible’ or perceived as intangible and, as a result, are valued as being lesser.”
There is also complexity around sexual assault victims — with some people having been assaulted before or after the abuse in question — which tends to drive awards down, she tells AdvocateDaily.com.
“Sometimes a person suffered trauma before the main assault and so they had pre-existing problems. If there were prior incidents of abuse or neglect, the defence’s position is that the victim was already compromised, and they only need to be restored to where they would have been without the abuse in question,” Grace says.
She adds, “Victims of abuse will often go on to have troubled lives and suffer further traumas, assaults or have problems with the law. That is frequently a point of contention. Were those subsequent problems caused by the assault in question or were they independent and unrelated?”
Grace says despite these factors often driving down awards and settlements, a 2018 Ontario Court of Appeal decision that addresses the range of appropriate non-pecuniary damages for a single incident of sexual assault against an adult woman brings some needed clarity to the law.
The case involved a female physician who was assaulted by a male colleague in her home. They were both married and co-workers at an Ontario hospital. The sexual assault reportedly consisted of one incident when the man, under the pretext of visiting the woman’s home on an urgent matter, removed his shirt and then, in the bathroom, the rest of his clothes.
Returning to the room, he tripped his female colleague, thrust his erect penis into her face, pulled down her pants and penetrated her vagina. He rolled off after she screamed, and, as she was leaving the room, she saw him masturbate and ejaculate onto the rug, the decision states.
“The defence argued that this type of case is worth $20,000 to $50,000 when parties are essentially equal in terms of power dynamics, and there’s no evidence of long-lasting harm,” says Grace, who was not involved in the matter and comments generally.
The trial judge disagreed and awarded the plaintiff $175,000 for general and aggravated (non-pecuniary) damages. On appeal, the province’s top court affirmed this award, finding that sexual assault is unique and its “humiliating and degrading nature” would justify such an award in circumstances like this.
“The Court of Appeal in its reasons affirmed that the range of non-pecuniary damages in a single incident sexual assault against an adult woman is $144,000 to $290,000,” Grace says. “Those are not the damages you can calculate with precision, such as loss of income or the cost of therapy. Rather, these are damages that compensate for pain and suffering and the loss of enjoyment of life.”
“For victims of sexual assault, the category of non-pecuniary damages has always been a critical part of the compensation awarded. This is why the Court of Appeal’s decision is so important. It will guide lawyers acting on both sides of these cases when they are valuing claims,” she says. “And, of course, this range will have to be adjusted upward to account for inflation in the years to come.”
Stay tuned for part two where Grace will explore damages in childhood sexual abuse cases.
This article originally appeared on AdvocateDaily.com
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Punitive Damages Awarded In Revenge Porn Case
A recent civil case where the court awarded $100,000 in general, aggravated and punitive damages to a victim of “revenge porn” is a significant advancement of the common law.
A recent civil case where the court awarded $100,000 in general, aggravated and punitive damages to a victim of “revenge porn” is a significant advancement of the common law, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.
The Ontario Superior Court of Justice matter involved the plaintiff who was seeking a default judgment against her former boyfriend for damages arising from his abusive behaviour towards her and his posting — without her knowledge and consent — of a sexually explicit video of her on a pornographic internet website.
“This case involved physical assault against an intimate partner,” says Grace, partner with Lerners LLP. In addition, “the plaintiff’s ex-boyfriend and father of her child posted a sexually explicit video on a pornographic website. Her face was visible in the video while his was not, and he allegedly did it as payback because she reported his violence to the police.”
“While she consented at the time to the video being made, she did not consent to its public disclosure to others. By the time she learned about the video being posted online, at least two years had passed, and it was viewed more than 60,000 times, linked to 10 different websites and downloaded who knows many times,” Grace says.
“This was devastating to her, and she was haunted by the fear that others would see it, including her child,” she adds.
While Manitoba has the Intimate Image Protection Act and Saskatchewan, Alberta and Newfoundland have tabled revenge porn laws, there is no similar statute in Ontario, Grace says.
“What the court has done is use judge-made law to provide a remedy for acts of online harassment including revenge porn through the creation of the tort of public disclosure of private facts without consent,” she notes.
In her judgment, Justice Sally Gomery wrote: “A strength of the common law is its ability to evolve and adapt to changing circumstances.”
Her decision noted that the tort of public disclosure of private facts has existed in U.S. law for decades.
“Despite its vintage, it is well-suited for use in the context of internet posting and distribution of intimate and sexually explicit images and recordings. It is the cousin to another privacy tort already recognized in Ontario, intrusion on seclusion,” Gomery wrote. “As such, it is an appropriate, proportionate legal response to a growing problem enabled by new technology.”
Grace, who was not involved in the matter and comments generally, says another interesting aspect of the case was that the plaintiff received a separate award of damages for the breach of privacy she suffered.
“This case was against an individual, not an institution — so it’s significant. We’re not dealing with someone who is wealthy, yet the court awarded $75,000 for general and aggravated damages, plus $25,000 as punitive damages.” These amounts were, Grace stresses, “on top of the $20,000 awarded in general damages for the physical and verbal assaults the plaintiff had endured.”
The role of “punishing” people is often left to the criminal courts, Grace notes.
“In the sexual abuse area, civil courts will sometimes award punitive damages. In this case, the defendant had already been criminally convicted for his physical assaults, which is usually a reason why a civil court won’t award punitive damages,” Grace says. “But here, the court saw fit to award punitive damages for a wrong that had gone unpunished by the criminal court — the defendant’s revenge porn.”
This article originally appeared on AdvocateDaily.com
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Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
Sexual Abuse Cases: Who Pays The Legal Bills?
Elizabeth Grace explains that a sexual abuse plaintiff's legal costs associated with advancing his or her claim can be very significant, especially if the case goes all the way to trial.
A sexual abuse plaintiff's legal costs associated with advancing his or her claim can be very significant, especially if the case goes all the way to trial.
A recent decision of the Supreme Court of British Columbia (“B.C.”), Nixon v. Pickton, 2015 BCSC 1700, highlights the factors that a trial judge may consider in awarding, or refusing to award, costs to a successful plaintiff who has rejected an offer to settle from the defendant, but fails to “beat” that offer at trial.
This decision has attracted some media attention (see“Pickton not responsible for victim's full legal costs” on Findlaw.ca, and “B.C. judge says David Pickton sex-assault victim should have settled” in an article published in The Globe and Mail).
Normally, a successful party's legal costs must be paid by the party who loses at trial. However, to encourage parties to settle before trial, our rules of court include various incentives based on payment of legal costs – specifically, who is to pay, on what scale, and starting at what point in time.
In the B.C. case, David Pickton sexually assaulted the plaintiff in the early 1990s. He was convicted for the assault. Many years later, the plaintiff commenced a lawsuit against Pickton seeking approximately $1 million in damages. She alleged that amongst other injuries, the assault caused her pain and suffering and resulted in a loss of past and future earnings.
Six weeks before the trial was set to begin, Pickton offered to settle the lawsuit for $50,000. Approximately 90 minutes after the offer was made, the plaintiff's lawyer notified Pickton's lawyer that the offer was rejected. The case proceeded to trial before a jury.
The plaintiff faced a number of challenges at trial. The accuracy of her memory was attacked, as was her credibility. Pickton's lawyers argued that the many miseries the plaintiff had suffered in her life called into question whether the assault by Pickton had caused her injuries. The judge agreed, concluding at paragraph 11 of his ruling on costs that “Ms. Nixon appeared to me as a witness who was not dishonest, but as a witness whose memory, and therefore credibility, were ravaged by the exceptionally difficult life she has faced. Frankly, on any rational assessment, her dealings with Mr. Pickton in 1991 were only a small event by comparison with the miseries she faced in many other parts of her troubled life.” The plaintiff had alleged that Pickton had cornered her, groped her body, and threatened to rape her.
The jury found in the plaintiff's favour and awarded her $45,000 as damages, which was less than Pickton's offer to settle for $50,000.
In his cost analysis, the trial judge stated that “[t]he dominant fact against Ms. Nixon […] is that she refused an offer to settle which she ought reasonably to have accepted.”
The trial judge only awarded the plaintiff her legal costs up until the date of Pickton's offer to settle. The judge refused to award her costs for the period that followed his offer. Pickton requested that he be awarded his legal costs from the date that his offer was made through to the end of the trial. The judge refused his request, stating that the plaintiff was the successful party at trial, and it would be wrong to award any portion of the trial costs to Mr. Pickton. In short, the parties were each made to bear their own legal costs after the offer was made.
The practical consequence for this plaintiff was that she likely netted very little compensation, despite her success at trial, because she had to cover her lawyer's fees that accrued after she rejected Mr. Pickton's offer to settle. One question that arises is whether this same decision could also have been made in Ontario, where the legislative scheme differs from that of British Columbia.
Ontario's Victims' Bill of Rights, S.O. 1995, chapter 6, specifically addresses when a victim of crime sues convicted perpetrators of the crime. The preamble to the Victims' Bill of Rights states that victims should be treated with compassion and fairness and “the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.”
One provision intended to further these goals relates to legal costs. Section 4(6) states that when a judge orders costs in favour of a victim, those costs “shall” be made on a solicitor-client basis (now known as “substantial indemnity basis”), such as after a favourable outcome at trial, unless the judge considers that to do so would not be in the interests of justice. Where costs on a substantial indemnity basis are awarded, the successful party is able to recoup a much greater percentage of his or her legal costs incurred than when the costs are awarded on the lower scale, known as “partial indemnity” costs.
Section 4(6) reflects the guiding principles of the Victims' Bill of Rights, namely, that victims should be treated with compassion and fairness. In K.T. v. Vranich, 2011 ONSC 683, Justice Whitten stated at paragraph 29 of his reasons for judgment that “[t]hose principles dictate that the cost of litigation should not be borne by [a victim of sexual assault] who is only here by virtue of the intentional actions of [the perpetrator]. Actions in which he sought his own gratification at the expense of [the victim's] autonomy and dignity.”
Moreover, cost awards under section 4(6) of Ontario's Victims' Bill of Rights are not made only against the individual who committed the crime. Where an institutional defendant, such as the convicted defendant's employer, is found liable for its employee's wrongful conduct, section 4(6) will be triggered such that substantial indemnity costs will also be ordered against the institutional defendant (see Evans v. Sproule, 2008 CanLII 58428 (ONSC) at paragraph 138).
However, where a defendant makes an offer to settle before trial, that offer is rejected by the plaintiff, and the plaintiff obtains a result at trial that is less than the amount of the offer, it is unclear how section 4(6) of the Victims' Bill of Rights would interact with the costs regime under Ontario's Rules of Civil Procedure. While the rules relating to legal costs are discretionary and determined on a case-by-case basis, the Rules contemplate the scenario of a rejected offer. Pursuant to Rule 49.10(2), where the plaintiff rejects the defendant's offer and obtains a less favourable judgment than the offer, the defendant is entitled to receive its legal costs from the plaintiff starting from the date the offer was made.
Would that result conflict with the express language of the Victims' Bill of Rights? The answer may be no, especially if one favours a technical approach to the statutory language over one that puts the emphasis on the principles of compassion and fairness for victims of crime. Section 4(6) states: “A judge who makes an order for costs in favour of a victim shall make the order on a [substantial indemnity] basis, unless the judge considers that to do so would not be in the interests of justice.” This provision only applies where a judge makes an order for costs in favour of a victim. A decision that a plaintiff is not entitled to costs does not offend the language of section 4(6), which addresses the quantum of costs. Moreover, the Victims' Bill of Rights does not provide direction on when a judge should make an order for costs in favour of a victim. Finally, the Victims' Bill of Rights gives the judge residual discretion to do what they believe to be “in the interests of justice”.
Applying the Victims' Bill of Rights to the Pickton case provides an illustration of this hypothetical. There, the judge ruled that the plaintiff ought reasonably to have accepted the defendant's offer to settle. As she failed to so, the judge ruled that she was not entitled to her legal costs from the date that the offer was made through to the end of trial. The judge did not make an order for costs in her favour after the date the offer to settle was made, meaning that section 4(6) would not have been triggered. It is only after a judge has chosen to make an order for costs in favour of a victim that they are mandated to do so on a substantial indemnity basis, but a judge always has an overriding discretion to determine to whom and when they will award costs.
While the outcome in the B.C. case may not be at odds with section 4(6) of the Victims' Bill of Rights, there is nonetheless an argument to be made that it would offend the Act's underlying principles, namely that a victim of crime be treated with compassion, fairness, and that victims not be discouraged from participating in the justice process. Where a victim of a sexual crime reasonably believes that they are entitled to a higher quantum of compensation than a defendant has offered, the victim ought to be entitled to take the matter to trial without fear of being unable to recoup their legal costs. That said, victims who are plaintiffs in civil lawsuits would be well advised to objectively evaluate the strengths and weaknesses of their claims and give careful consideration to any offer to settle that is made by a defendant.
Elizabeth Grace is a civil sexual abuse lawyer in Toronto and has specialized in sexual assault matters for nearly two decades.
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.