Judging Cause and Effect: Challenges and Trends in Assessing Damages in Sexual Abuse Cases

• Author: Elizabeth K.P. Grace
• Pages: 177-264

Judging Cause

and

Effect:

Challenges

and

Trends

in

Assessing

Damages

in

Sexual Abuse Cases

Elizabeth

K.P.

Grace*

We

speak

of

concepts like pain

and

suffering,

loss

of

enjoyment

of

life,

and

emotional scarring.

It is

difficult

to

compare injuries

suffered

in a

motor vehicle negligence action with

the

injuries

suffered

by the

victim

of

a

brutal rape. There

is no

scale upon which

one can

weigh

the

sever-

ity of the

injuries

to a

person

who

suffers

permanent physical injury

because

of the

unintentional negligence

of a

stranger against

the

sever-

ity of the

emotional injuries

suffered

by a

victim

of

brutal violation

of

her

private person against

her

will

by a

person

who had

been

a

trusted

friend.

The

injuries

are so

different

in

their nature

and

effect

that

it

seems inappropriate

to

attempt

to

compare them.

-

M.C.

v.

KM.

(1991),

46

C.P.C. (2d)

254

(Ont. Gen. Div.)

per

Keenan

J. at 264

It

is

hard

to

imagine

a

greater

affront

to

human

dignity

than

non-con-

sensual sexual intercourse.

—

Norberg

v.

Wynrib,

[1992]

2

S.C.R.

226 per La

Forest

J. at 265

The

damages

wrought

by

incest

are

peculiarly complex

and

devastat-

ing,

often

manifesting themselves slowly

and

imperceptibly....

- M.

(K.)

v. M.

(H.),

[1992]

3

S.C.R.

6

per

La

Forest

J. at 17

Partner

of

Lerners

LLP

in

Toronto.

The

author

wishes

to

thank

Melisa

T.

Monte-

murro,

student-at-law,

for her

assistance

with

this

paper

and,

in

particular,

for her

preparation

of the

damages

chart

appended

hereto.

178

ELIZABETH

K.P.

GRACE

It

cannot

be

forgotten that

a

sexual assault

is

very

different

from

other

assaults.

It is

true

that

it,

like

all

other

forms

of

assault,

is an act of

vio-

lence.

Yet it is

something more than

a

simple

act of

violence....

It is an

assault upon human

dignity....

—

R. v.

Osolin,

[1993]

4

S.C.R.

595 per

Cory

J. at 669

By

definition,

a

sexual assault deprives

the

victim

of her

dignity,

her

self-respect,

her

sense

of

self-confidence

and

leaves

her

fearful

of

places

where

she had

previously

found safety

and

solace.

—

S.

(J.)

v.

Clement

(1995),

122

D.L.R.

(4th)

449

(Ont. Gen. Div.)

per

Lang

J.

at 520

To

assess damages

for the

psychological impact

of

sexual abuse

on a

particular person

is

like trying

to

estimate

the

depth

of the

ocean

by

looking

at the

surface

of the

water.

-

Y.(S.)

v.

C.(F.G.)

(1996),

26

B.C.L.R.

(3d)

155

(C.A.)

per

Macfarlane

J.A.

at

para.

55

Rape

is

unlike

any

other

sort

of

injury

incurred

by

accident

or

neglect.

Survivors

of

rape must bear social stigmatization which accident vic-

tims

do

not. Rape

is not

about sex;

it is

about anger,

it is

about power

and it is

about control.

It is

...

"an

overwhelming

life

event."

It is a

form

of

violence intended

to

create terror,

to

dominate,

to

control

and

to

humiliate.

It is an act of

hostility

and

aggression. Forced sexual inter-

course

is

inherently violent

and

profoundly degrading.

—

Jane

Doe v.

Metropolitan

Toronto

(Municipality)

Commissioners

of

Police

(1998),

39

O.R. (3d)

487

(Gen. Div.)

per

MacFarland

J. at 532

A.

INTRODUCTION

As

the

above quotes

illustrate,

the

Canadian judiciary

has

consistently

recognized

on a

general level that sexual abuse

is

unique

not

only

in

terms

of its

wrongful

nature,

but

also

the

kinds

of

harms

and

injuries

it

causes

its

victims. This paper considers why, given this apparent rec-

ognition,

damages awards

in

individual sexual abuse cases

are

rarely

of

the

size

and

multifaceted

nature

one

would expect

from

the

powerful

statements

quoted above.

Judging

Cause

and

Effect

179

Why,

in an

area

of the law

where

the

consensus

is

that

the

"cap"

on

non-pecuniary

general

damages

does

not

apply/

have

awards

for

pain

and

suffering

and

loss

of

enjoyment

of

life

never

exceeded

the

cap,

or

for

that

matter,

have

they

only rarely

and

exceptionally

been

close

to

or

at the

level

of the

cap?2

In

defamation

cases,

where

the cap

also

does

not

apply,

awards

exceeding

the cap

have

been

made

and

upheld

on ap-

peal.

Consider

Hill

v.

Church

of

Scientology?

where

the

Supreme

Court

of

Canada

in

1995

upheld

jury awards made

in

1991

of

$300,000

for

general

damages

plus

$500,000

in

aggravated

damages,

or

Hodgson

v.

Canadian

Newspapers

Co.,4

where

the

Ontario Court

of

Appeal

in

2000

upheld

a

1

The

Supreme Court

of

Canada established

a

"cap"

on

non-pecuniary damages

of

$100,000

in

1978 dollars

for

personal

injury

cases

in

what

is

known

as its

"dam-

ages trilogy": Andrews

v.

Grand

&

Toy

Ltd., [1978]

2

S.C.R.

229;

Arnold

v.

Teno,

[1978]

2

S.C.R. 287;

and

Thornton

v.

Board

of

School

Trustees

of

School

District

No. 57

(Prince

George),

[1978]

2

S.C.R.

267.

As of May

2004,

the cap was at

$299,043,

accounting

for

inflation.

The

British Columbia Court

of

Appeal

has

held

the cap to be

inapplica-

ble to

claims based

on

sexual assault:

Y.(S.)

v.

C.(F.G.)

(1996),

26

B.C.L.R.

(3d)

155 at

paras. 28-31

(C.A.),

and

W.R.B.

v.

Flint,

[2003]

B.C.J.

No.

2783

at

para.

169

(C.A.).

In

Y.(S.)

v. C.

(F.G.),

the

court concluded:

"[i]n

some

cases,

sexual abuse victims

may

require

and

deserve more than

the

'cap'

allows,

due to the

unpredictable impact

of

the

tort

on

their

lives."

It

held

that

the

policy

reasons

justifying

the

imposition

of

the cap did not

apply

in the

sexual assault context. Unlike

in

catastrophic personal

injury

cases where there

was

evidence

of an

impact

on the

public purse, there

was

no

such evidence

in the

abuse context.

It

also noted that

the cap

should

not

apply

in

abuse cases because "such claims

do not

usually result

in

awards guaranteeing

lifetime

economic security.

In the

catastrophic personal

injury

cases, awards under

other heads

of

damages

are so

high that there

may be a

lesser need

for

general

damages

to

provide solace

and to

substitute

for

lost

amenities."

By

contrast,

the

trial

judge

in Ms. R. v. Mr.

W.,

[2003]

A.J.

No. 927 at

paras.

7-8

(Q.B.),

an

incest case,

found

that

the cap

applied.

2

There

are

only

two

reported sexual abuse cases

in

which non-pecuniary awards

at

the

level

of the cap

were made.

In

Y.(S.)

v.

C.(F.G.),

supra

note

i,

the

British Colum-

bia

Court

of

Appeal

set

aside

a

judgment based

on a

jury award

of

$350,000

for

general

and

aggravated damages

and

substituted

an

award

of

$250,000,

which

was

roughly

the cap

equivalent

in

1996 dollars.

In Ms. R. v. Mr.

W.,

supra

note

i,

the

Alberta

Court

of

Queen's Bench held that

the

plaintiff,

having

suffered

catastrophic

emotional damage

as a

result

of her

stepfather's sexual

and

physical abuse

when

she was

between eight

and

eighteen years old,

was

entitled

to the

maximum award

for

general damages

up to the cap and

awarded

her

$285,000

for

general damages

(roughly

the cap

equivalent

in

2003 dollars).

3

[1995l

2

S.C.R.

1130.

4

(2000),

49

O.R. (3d)

161

(C.A.).

Other noteworthy examples

of

significant non-pecuni-

ary

awards made

in

defamation cases include:

Amalgamated

Transit

Union

v.

Indepen-

dent

Canadian

Transit

Union,

[1997] A.J.

No. 191

(Q.B.),

where

$500,000

was

awarded

in

general damages

to the

five

plaintiffs;

Botiuk

v.

Toronto

Free

Press

Publications

Ltd.,