How much money is my claim worth?

Damages in Sexual Assault/Abuse Cases

Before deciding to commence any type of litigation, it is important to know how much your claim is (reasonably) worth. This is an important discussion you should have with a lawyer. The following is intended to provide some helpful introductory information to have an informative and efficient discussion with a lawyer experienced in this area. It is not intended as legal advice and it may be incomplete and/or out of date.

In civil sexual assault/abuse cases, there tend to be 5 major "heads" (or categories) of damages:

1) Pain and suffering damages (also referred to as general and aggravated damages, or non-pecuniary damages) - In civil sexual assault cases, these generally refer to psychological harms a person has suffered as a result of the assault/abuse. Most times, there aren’t any significant physical harms, like broken bones etc., but those types of injuries would be covered by pain and suffering damages as well;

2) Income loss damages or damages for loss of competitive advantage;

3) Special damages (for fixed costs that an individual has had to pay for, related to the abuse/assaults - e.g. past therapy expenses);

4) Future therapy costs; and

5) Punitive damages

Pain and Suffering Damages

In order to prove these harms, the plaintiff generally retains an independent psychologist or psychiatrist to assess the plaintiff, review the relevant records (if there are any – e.g. past therapy), interview collateral witnesses (e.g. another sibling), and then prepare a report setting out their opinions regarding the psychological harms the plaintiff has suffered as a result of the abuse. There are other factors the court will look at in awarding pain and suffering damages, including but not limited to the age, vulnerability and subsequent impact on the plaintiff, the number, frequency and nature of the assaults and whether the perpetrator of the assault was in a position of trust. Recent court decisions (such as Zando v. Zando, 2017 ONSC 1289) have canvassed and set out the general range of pain and suffering damages awarded by Ontario courts for sexual assault cases. The range is generally between $140,000 and $300,000. That said, there are cases that fall outside this range (on both ends). For instance, in D.S. v. Quesnelle, 2019 ONSC 3230, the Court awarded pain and suffering damages of $400,000.

D.S. v. Quesnelle, 2019 ONSC 3230 was an important decision because the Court stated that the "personal injury cap" should not apply in that case. Known as the trilogy, three cases from the late 1970s, Andrews v. Grand and Toy Alberta Limited, Thornton v. District No. 57 and Arnold v. Teno, established that plaintiffs could not recover more than about $350,000 (adjusted for inflation) for non-pecuniary damages as the result of a catastrophic personal injury. The rationale for the ceiling was, in part, to prevent “widely extravagant claims”, and because damages for non-pecuniary losses would be compensated for by other heads of damages like future care or loss of income damages.  

Unfortunately, in that case, the Court did not engage in an analysis as to why the cap did not apply, or make any more general statements that the cap does not apply in sexual abuse cases. However, the decision helps support the argument that the impact on victims of sexual assault is fundamentally different than other types of injuries like a car accident. Here, the only non-pecuniary damages we are talking about are usually psychological harms. The functions of a non-pecuniary award in a historical sexual abuse case are generally described as threefold: (a) to provide solace for the victim’s pain and suffering and loss of enjoyment of life, (b) to vindicate the victim’s physical autonomy and sexual integrity, and (c) to recognize through aggravated damages the humiliating and degrading nature of the wrongful acts: Nova Scotia (Attorney General) v. B.M.G., [2007] N.S.J. No. 506 (C.A.).

Previously, in S.Y. v. F.G.C. (1996), 26 B.C.L.R. (3d) 155, the B.C. Court of Appeal found the “policy considerations” behind the cap, meant for accidents and medical malpractice, are not present in “intentional torts involving criminal behaviour.” That decision stated that the cap’s pretext, that excessive damage awards were a drain on the public purse and given out too frequently, does not apply sexual assaults.

Aggravated damages can enhance the pain and suffering award and typically arise in situations where there has been a betrayal of trust, an exploitation of power and authority or a violation of the survivors’ physical autonomy and sexual integrity, among other things.

Income Loss Damages or Damages for Loss of Competitive Advantage

There are generally two different ways the Court assesses an economic loss claim in sexual assault/abuse cases. The first way is a loss of income analysis. This method involves a comparison between what the plaintiff would have earned (and would have continued to earn into the future) absent the abuse, to what the plaintiff actually earned and will be expected to earn into the future. An economic expert is generally retained to tackle this analysis based on the assumptions provided to them by counsel. However, this type of analysis can be very tricky if the abuse occurred when the plaintiff was a child and/or without any work history. 

Normally, the test for past loss of income damages is a balance of probabilities (e.g. but for the sexual assault, is it more likely than not the plaintiff would have become a pilot?). This is contrasted with future income loss damages, where the plaintiff must only prove that there is a real and substantial possibility of future economic loss caused by the abuse. However, the Ontario Court of Appeal, in MacLeod v. Marshall, 2019 ONCA 842, confirmed a modified test to be applied in relation to past income loss claims in childhood sexual abuse cases, because the sexual assault happened before there was any opportunity for the plaintiff to establish an employment history. In those situations, order to establish an entitlement to past and future income loss, the plaintiff need only prove there is a “…real and substantial possibility that the sexual abuse caused his economic loss.” Once the plaintiff has established that real and substantial possibility, the plaintiff is entitled to compensation commensurate with the percentage chance he would have earned that income but for the defendant’s actions. This is a complicated, important and nuanced analysis that should be discussed with a lawyer who specializes in this area. These damages can range anywhere from $0 into the hundreds of thousands, or even millions, of dollars, depending on the plaintiff's specific situation.

In the alternative, if that traditional income loss test cannot be made out (e.g. where there is relatively little or no education and/or employment history unaffected by the abuse), another way the Court can analyze economic loss is by considering whether the plaintiff has suffered a "loss of competitive advantage". This analysis focuses the value of a plaintiff’s lost earning capacity. Where there is an obvious but unquantifiable impairment of earning capacity due to early sexual abuse, courts will often impose a global assessment of loss of earning capacity. A court will consider whether the plaintiff has been rendered less capable overall from earning income from all types of employment, whether the plaintiff is generally less marketable as an employee, whether the plaintiff lost the ability to take advantage of all employment opportunities which might have been otherwise open to him, and whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive market: B. (P.) v. E.(R.V.), 2007 BCSC 1568. These global awards tend to be lower than traditional income loss awards, but are still significant.

It is important to discuss both these alternative with a lawyer experienced in this area, in order to determine the best approach to use in the plaintiff's specific circumstances.

Special Damages

This head of damages relates to money a client has actually expended as a result of the sexual abuse (i.e. reimbursement for money already spent by the plaintiff). In sexual assault cases, these tend to be therapy/counselling expenses, tuition fees, rehabilitation costs and/or other medical expenses.

Future Treatment Costs

Future treatment is an important consideration for sexual abuse/assault cases. You should talk to your lawyer about the type of treatment you might want to engage in, if any, following a lawsuit. Generally, in order to make a claim for future treatment, we seek a "future treatment plan" from either an independent expert (i.e. a psychiatrist or psychologist) or the plaintiff's treating practitioner. That doctor/psychologist/therapist/counsellor would prepare a recommended future treatment plan, which we would then cost out in order to make a claim for those damages. 

Punitive Damages

Punitive damages are generally awarded where the Court finds the defendant(s)' behaviour to be egregious and/or morally reprehensible.

As the Court summarized nicely in Anderson v. Molon, 2020 BCSC 1247,

247      Punitive damages are an exceptional remedy. The law governing punitive damages was     helpfully set out by Justice Watchuk in West Bros. Frame & Chair Ltd. v. Yazbek, 2019 BCSC 1844at paras. 223 — 226:

[223] Punitive damages are unlike any other form of damages. Their purpose is not to compensate, but to punish. Similar to a criminal penalty, punitive damages are driven by a logic of retribution, denunciation and deterrence: Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 111.

[224] Courts should only resort to an award of punitive damages in exceptional circumstances. Such an award should only made in response to conduct that “harsh, vindictive, reprehensible and malicious in nature” as well as “extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment”: Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085 at 1108. Punitive damages should be awarded to deter conduct only if compensatory damages are insufficient to do so: Whiten at para. 94.

[225] Punitive damages must be tailored to the defendant’s culpability. In Whiten, Binnie J. identified the following factors in assessing the blameworthiness of a defendant’s conduct at para. 113:

(a) whether the conduct was planned and deliberate;

(b) the intent and motive of the defendant;

(c) whether the defendant persisted in the outrageous conduct over a lengthy period of time;

(d) whether the defendant concealed or attempted to cover up its misconduct;

(e) the defendant’s awareness that what he or she was doing was wrong;

(f) whether the defendant profited from its misconduct; and

(g) whether the interest violated by the misconduct was known to be deeply personal or irreplaceable.

[226] In addition, an award of punitive damages must be:

(a) proportionate to the degree of vulnerability of the plaintiff;

(b) proportionate to the harm or potential harm directed specifically at the plaintiff;

(c) proportionate to the need for deterrence;

(d) proportionate, even after taking into account the other penalties, both civil and criminal, which have been or are likely to be inflicted on the defendant for the same misconduct;

(e) proportionate to the advantage wrongfully gained by a defendant from the misconduct: Whiten at paras. 114-126.

In cases of sexual abuse by a person in a trust relationship, it is common to see punitive damages awards of $25,000 to $50,000 against the individual perpetrator of the assault, though higher punitive damages have certainly been awarded (see, for example, Anderson v. Molon, 2020 BCSC 1247, where the Court made a $250,000 punitive damages award against the perpetrator of the assault).  It is often more difficult to obtain punitive damages against an institution, but there have been some recent cases where the Court awarded significant punitive damages awards against the institution (in the hundreds of thousands of dollars). See, for example, MacLeod v. Marshall, 2019 ONCA 842, where the Court of Appeal upheld an Ontario jury award of $500,000 for punitive damages against the institutional defendant, The Basilian Fathers of Toronto. Similarly, in Anderson v. Molon, 2020 BCSC 1247, the B.C. Court awarded punitive damages against the defendant Diocese in the amount of $150,000.

Conclusion

It is critical to review your case with a lawyer experienced in this practice area before commencing a civil action for sexual assault/abuse.  There are many considerations to take into account in order to properly value a case, some of which are detailed above. However, a lawyer experienced in this practice area will also take into account other factors that are not discussed here, as well as the latest caselaw in this area, and the risks and other issues associated with litigation and/or your specific case. This blog post is no substitute for speaking with a lawyer, but I hope it will provide you with some areas of consideration and topics of discussion.