Civil Litigation

Trends in civil sexual abuse awards: part 2

By Kirsten McMahon, AdvocateDaily.com Managing Editor

In the second instalment of a miniseries on advancing damages in sexual assault cases, Toronto civil sexual abuse lawyer Elizabeth Grace discusses developments in awards for historical childhood abuse.

The award ranges for pain and suffering awards in historical childhood sexual abuse cases are steadily climbing, Toronto civil sexual abuse lawyer Elizabeth Grace tells AdvocateDaily.com.

“These inflation-adjusted non-pecuniary ranges act as benchmarks,” says Grace, who has been practising in the area of sexual abuse and misconduct for 25 years. “What I have noticed lately is that defence counsel are starting to acknowledge this.”

She points to a 2004 Ontario Superior Court of Justice matter involving three brothers who had been abused by their former priest. Justice John Kerr found the abuse justified awards at the upper end of the scale and noted the damages suggested by the defence did not “reflect the present-day level of awards for compensation for the effects of sexual assault on individuals in their formative years.”

Grace, partner with Lerners LLP, says the range for childhood sexual abuse for non-pecuniary damages identified in this 2004 decision works out to be approximately $159,000 to $319,000 when adjusted for inflation.

“Fourteen years later, a 2018 case involving a teacher sexually abusing a child provides an even bigger range,” she says.

In that matter, an action was brought by an adult plaintiff against his teacher and the school board for childhood sexual abuse. The plaintiff — who suffers from major depression with dysthymia, post-traumatic stress disorder, substance abuse, and personality disorder of the antisocial and borderline type — alleged that these serious mental health issues and injuries were a result of the sexual abuse perpetrated on him by the defendant.

Grace, who was not involved in the matter and comments generally, says the judge found the inflation-adjusted range of non-pecuniary damages for childhood sexual abuse cases to be $56,000 to $371,000.

"$371,000 is now the high-water mark accepted by our courts," notes Grace.

Justice Helen MacLeod-Beliveau found the impact of the sexual abuse on the plaintiff was severe and assessed the total damages at $250,000 for general non-pecuniary and aggravated damages. She also awarded $135,587 for future loss of an interdependent relationship.

Grace notes the validation of the future loss of interdependent relationship claim is significant.

“This pecuniary claim recognizes the loss of the ability to form and sustain an interdependent domestic relationship. This is a loss that can be measured and can cause economic hardship because two can live more cheaply than one. It’s recognized that there are efficiencies to living as a couple.”

“Years ago when I started in the sexual abuse area, there was this new loss of interdependency head of damages, and I thought, ‘Wow, this has application to the sexual abuse context.’ Fundamentally, you have people who have suffered a deeply personal wrong, and their trust has been broken. They often have difficulty forming relationships after the abuse. There are intimacy issues, and they will often have flashbacks to the abuse they suffered. This becomes a real problem when forming or maintaining relationships.”

She says it was refreshing to read that the court had found the category of pecuniary loss did apply in this childhood sexual abuse case.

“The decision breathes new life into this category of damages. The court recognized the plaintiff had failed marriages and accepted that there is a real possibility that he's not going to form another relationship in his remaining years because of the abuse he suffered as a child.”

To read part one, click here.

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