S.Y. v. F.G.C., (1996) 78 B.C.A.C. 209 (CA)

• Judge: Macfarlane, Southin and Hinds, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: Tuesday July 16, 1996
• Jurisdiction: British Columbia
• Citations: (1996), 78 B.C.A.C. 209 (CA);1996 CanLII 6597 (BC CA);[1997] 1 WWR 229;26 BCLR (3d) 155;30 CCLT (2d) 82;78 BCAC 209

S.Y. v. F.G.C. (1996), 78 B.C.A.C. 209 (CA);

    128 W.A.C. 209

MLB headnote and full text

S.Y. (plaintiff/respondent/appellant by cross-appeal) v. F.G.C. (defendant/appellant/respondent by cross-appeal)

(V02569)

Indexed As: S.Y. v. F.G.C.

British Columbia Court of Appeal

Macfarlane, Southin and Hinds, JJ.A.

July 16, 1996.

Summary:

The adult female plaintiff sued her step­father for damages for sexual assault. A jury allowed the action and awarded damages. The stepfather appealed respecting the quan­tum of damages. The plaintiff cross-appealed respecting certain aspects of the damages.

The British Columbia Court of Appeal allowed the appeal and dismissed the cross-appeal.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (including sexual abuse) - The now 36 year old plaintiff was sexually abused by her stepfather from age seven to 14 and suffered physical and verbal abuse of a sexual nature from age 14 to 18 - Ap­proximately 700 assaults - The abuse had a profound effect on her life - The step­father expressed only superficial remorse and minimized the problem, and made death threats against the plaintiff, her mother and the family doctor - The plain­tiff had been married and divorced twice and had diffi­culties with personal relation­ships, especi­ally with men - A jury awarded the plain­tiff $350,000 in compen­satory damages, including nonpecuniary and aggravated damages - The British Columbia Court of Appeal held that the award was inordi­nately high and substi­tuted $250,000 - See paragraphs 32 to 59.

Damage Awards - Topic 2013

Exemplary or punitive damages - Sexual assault - The now 36 year old plaintiff was sexually abused by her stepfather from age seven to 14 and suffered physical and verbal abuse of a sexual nature from age 14 to 18 - Approximately 700 assaults - The abuse had a profound effect on her life - The stepfather expressed only super­ficial remorse and minimized the problem, and made death threats against the plain­tiff, her mother and the family doctor - The plaintiff had been married and divorced twice and had difficulties with personal relationships, especially with men - A jury awarded the plaintiff $250,000 punitive damages - The British Columbia Court of Appeal held that the award was inordinately high and unnecessary to pun­ish the stepfather and deter others - The court reduced the award to $50,000 - See paragraphs 60 to 68.

Damages - Topic 904

Aggravation - Aggravated damages defined - The British Columbia Court of Appeal stated that aggravated damages were not a separate head of damages, but were a part of general damages - Juries ought not to be instructed as if they were a separate category of damages, particular­ly in cases of sexual abuse where it was difficult to separate the physical harm and the continuing mental suffering - See paragraph 36.

Damages - Topic 1501

General damages - General principles - General - The British Columbia Court of Appeal held that the "rough upper limit" or "cap" on compensatory damages was inap­plicable to cases of damages for intentional torts of a quasi-criminal nature (sexual assault) - See paragraphs 28 to 31.

Cases Noticed:

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 W.R. 161; 64 B.C.A.C. 241; 125 W.A.C. 241; 11 B.C.L.R.(3d) 201, refd to. [para. 25].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 29].

Nance v. British Columbia Electric Rail­way Co., [1951] 1 A.C. 601; 2 W.W.R.(N.S.) 665 (P.C.), refd to. [para. 32].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620; [1981] 1 W.W.R. 289; 14 C.C.L.T. 181; 114 D.L.R.(3d) 385, refd to. [para. 32].

Koukoumakis et al. v. Stainrod (1995), 81 O.A.C. 36 (C.A.), refd to. [para. 34].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1; 92 D.L.R.(4th) 449; [1992] 4 W.W.R. 577; 68 B.C.L.R.(2d) 29, refd to. [para. 35].

D. (Guardian ad litem) v. F., [1995] B.C.J. No. 1478 (S.C.), refd to. [para. 42].

T.P.S. v. J.G., [1995] B.C.J. No. 1650 (S.C.), refd to. [para. 42].

S.H. v. R.G.L. (1993), 85 B.C.L.R.(2d) 232 (S.C.), consd. [para. 42].

M.M. v. R.F., [1996] B.C.J. No. 722 (S.C.), refd to. [para. 43].

D.A.A. v. D.K.B., [1995] O.J. No. 3901 (Gen. Div.), refd to. [para. 47].

P.B. v. W.B. (1992), 11 O.R.(3d) 161 (Gen. Div.), consd. [para. 48].

Brandner v. Brandner (1991), 71 Man.R.(2d) 265 (Q.B.), consd. [para. 48].

S.L.C. and Y.M.W. v. M.J.M. (1976), 179 A.R. 200 (Q.B.), consd. [para. 49].

Myers v. Haroldson, [1989] 3 W.W.R. 604; 76 Sask.R. 27 (Q.B.), consd. [para. 67].

Mustazi v. Tjin (1995), 24 C.C.L.T. 191 (B.C.S.C.), consd. [para. 67].

Coodin v. Hodgkinson (1983), 49 B.C.L.R. 359 (S.C.), refd to. [para. 83].

Counsel:

Harold F. Turnham, for the appellant;

Etel R. Swedahl, for the respondent.

This appeal was heard in Victoria, British Columbia, on May 22 and 23, 1996, before Macfarlane, Southin and Hinds, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Macfarlane, J.A., on July 16, 1996.