Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $110,000 for damages flowing from a ‘consensual‘ sexual relationship she had with her high school teacher.
While today’s case is likely to receive media attention due to its sexual theme, it is worth discussing more so because it highlights two important topics that sometimes arise in sexual abuse civil prosecutions; consent and vicarious liability.
In today’s case (AB v. CD) the Plaintiff had several sexual encounters with her grade 12 English teacher. Following this relationship she sued him for damages and the school board claiming they were vicariously liable for the harm caused by the relationship. The claim against the teacher was successful but the claim against the school board was dismissed.
The nature of the sexual encounters are summarized at paragraphs 28-52 of the reasons for judgement. There is no need to repeat them here. The Plaintiff agreed that “she had consented to…the touching incidents“. Despite this admission, however, people in authority cannot have consensual sexual contact with people under their authority who are under 18 years of age as this is contrary to section 150.1 of Canada’s Criminal Code.
The school board’s lawyer argued that despite this prohibition, “consent remains a defence in a civil action for sexual assault“. Madam Justice Gray soundly rejected this argument finding as follows:
 The Criminal Code provisions recognize that young people are inherently vulnerable to persons in positions of authority or trust. While such young people may think that they are making a free choice to engage in a relationship with a person in authority, the very nature of the relationship precludes a free choice.
 Like Stromberg-Stein J., I conclude that it would introduce an odd and problematic inconsistency in the law if a young person were considered legally incapable of consenting to sexual activity for the purposes of the criminal law, but were capable of giving such consent in a related civil action.
 The public policy set out in the Criminal Code has the effect that a young person under the age of 18 cannot consent to sexual contact with a person in authority, as a matter of law, whether the applicable proceedings are criminal or civil.
 As a result, CD is liable to AB for any damages she suffered as a consequence of the sexual battery.
(on a related note, click here to read a BC Court of Appeal decision released this week upholding a criminal conviction of an individual who failed to let his partners know he was HIV positive finding this omission was a ‘fraudulent misrepresentation’ which overrides otherwise consensual sexual contact)
The next issue that was noteworthy was the Court’s discussion of vicarious liability. As previously discussed, the law sometimes holds an employer responsible for the deeds of an employee even though the employer did not act negligently. The law of the vicarious liability of School Boards for the sexual battery by teachers is still developing in Canada and there are relatively few judgements addressing this topic.
Madam Justice Gray found that the School Board should not be vicariously liable on the narrow facts of this case and in doing so provided a useful discussion of applicable legal principles at paragraphs 131-155 of the reasons for judgement and applied the Bazley principles to the facts of the case at paragraph 157.
Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $110,000 for damages flowing from a ‘consensual‘ sexual relationship she had with her high school teacher.
Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, ordering the Government of BC to pay a Plaintiff $605,000 in damages as a result of childhood sexual abuse.
In today’s case (D.K.B. v. British Columbia) the Plaintiff was sexually abused by his hockey coach when he was 13 years old. The abuse occurred in 1988. The hockey coach was a convicted sex offender and his probation officer failed to warn the minor hockey association of this fact. In 2005 the Province of BC was found vicariously liable for the sexual abuse. Today’s case focused on damages.
The details of the abuse are set out in paragraphs 5-10 of today’s judgement. The Plaintiff suffered harm as a result of this abuse. Dr. O’Shaughnessy testified about the extent of the harm and his opinion was accepted by the Court. Specifically Dr. O’Shaughnessy provided the following opinion:
Ultimately, however, I am impressed that given the nature of the sexual assaults and in particular at the critical developmental point that more likely than not the sexual assaults were a material factor in the development of his Mood Disorder and his substance abuse as well as his Personality Disorder. While indeed he may have gone on to develop problems with substance abuse in any event, I think the sexual abuse was a critical factor and more likely than not he would not have gone on to develop these difficulties had the sexual assaults not occurred
The Plaintiff went on to have a career in professional hockey and subsequently as a realtor. He testified that this was impacted by the consequneces of the abuse. Mr. Justice Dley agreed and awarded just over $450,000 for the impact the abuse had on the Plaintiff’s earning capacity.
The balance of the claim was made up largely of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life). The parties settled this head of damage at $125,000. Since this aspect of the case was privately settled today’s judgement is not, strictly speaking, a binding precedent on the issue, however, given the relative lack of reported cases dealing with non-pecuniary damages for sexual abuse in British Columbia I thought it would be useful to add today’s case to this site’s civil sex abuse claims database.
Lawsuits are public matters. Generally anyone is free to go to a Court Registry and obtain the names of parties to lawsuits and look at the formal issues of their claims. This ‘open-court’ principle is fundamental in our Democracy and applies not only to criminal cases but also to civil cases including those dealing with claims for damages for sexual abuse.
It is understandably difficult for Plaintiffs to bring lawsuits dealing with the impact of sexual abuse in the best of circumstances and the open-court principle can serve as an unwelcome discouragement. Accordingly BC Courts routinely make orders under the Court’s “inherent jurisdiction” to permit plaintiffs to identify themselves by their initials to protect their identity when dealing with sensitive lawsuits.
Sometimes, however, identifying a plaintiff by initials is not enough to protect their identity. When this is the case the Court can go further to ensure a fair balance is struck between our open court system and the lack of deterrence of Plaintiffs seeking access to justice. This balance was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (A.B v. C.D.) the Plaintiff sued a former high school teacher alleging that he sexually exploited, assaulted and battered her. The Plaintiff also sued the school board arguing that they were ‘vicariously liable‘ for the misdeeds of the teacher.
In the course of the claim the Plaintiff was allowed to refer to herself by the initials AB. The Defendants brought a motion seeking that they also be allowed to refer to themselves by initials. The Vancouver Sun, wishing to fully report on the story, intervened and opposed the motion. Madam Justice Gray ultimately granted the motion. The reason for doing so was not to protect the defendants but rather to more meaningfully protect the identity of the Plaintiff.
The Court set out a lengthy summary of recent cases discussing the varying principles at stake. From there Madam Justice Gray provided the following short and useful reasoning in allowing the initials order:
 If the former teacher’s name is published in this case, it could lead members of the public, particularly people who were students and teachers at the plaintiff’s former school, to identify the complainant as the person involved in the criminal proceedings and these related civil proceedings. As a result, the September 27, 2010 ban shall be clarified to provide for restraint on the publication of the former teacher’s name.
 It may seem odd that the former teacher will be treated better than others convicted of sexual offences if his name and identifying information is suppressed. However, this is simply the result of the publication ban and the circumstances. For example, where an accused person has a family relationship to an accused, it is routine to avoid publication of the name of the accused, because it could lead to identification of the complainant. This does not suggest that sexual offenders who prey on family members deserve better treatment, but simply reflects the inevitable result of protecting the complainant’s identity…
 Schools are sufficiently small communities that a few facts can readily identify a former student. Here, the evidence shows that two teachers from the plaintiff’s former school have recently been accused of sexual misconduct with a student. That is such a small number of teachers that publication of the name of the school is likely to lead to identification of the plaintiff, particularly in combination with other details relevant to the plaintiff’s claim, such as her career.
 In this case, a ban on publication of the name of the plaintiff’s former school is required for compliance with the September 27, 2010 ban on publication of information that would tend to identify the plaintiff…
 The evidence shows that there are several high schools operated by the defendant school district. The community served by the defendant school district is a relatively small community. The only evidence of alleged or proven sexual misconduct by teachers in the defendant school district was of the two teachers who formerly taught at the plaintiff’s former high school.
 In the circumstances of this case, publication of the name of the school board is likely to lead to identification of the plaintiff. As a result, the order must be clarified to prohibit publication of that information.
The Woodlands School was a facility operated by the Province of British Columbia until 1996. It housed children and adults with mental and physical disabilities.
Two well documented investigative reports highlighted a sad history which involved systemic physical, sexual and psychological abuse perpetrated against these vulnerable residents. The reported abuse included “hitting, kicking, smacking, slapping, striking, restraining, isolating, grabbing by the hair or limbs, dragging, pushing onto table, kicking and shoving, very cold showers, very hot baths resulting in burns to the skin, verbal abuse including swearing, bullying and belittling, inappropriate conduct such as extended isolation, wearing shackles and belt-leash with documented evidence of injuries including bruising, scratches, broken limbs, black eyes and swollen face.”
A class action lawsuit was launched in 2002 seeking compensation for the Victims of the Woodlands School. Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, (Richard v. British Columbia) approving a settlement for the survivors.
The settlement allows each survivor who was abused after August 1, 1974 to receive between $3,000 and $150,000 in compensation. (the reason for the August 1974 cut off is because people abused before that time don’t have the right to sue the Province of British Columbia as a result of a law known as The Crown Proceeding Act). In all this is a class of 1,168 individuals.
The approved settlement does not award each member a specific dollar figure, rather it approves a system in which each class member can efficiently seek access to compensation based on a negotiated system which focuses on the nature of abuse they suffered.
This settlement is an example of a creative resolution to a series of very difficult claims many of which may not have succeeded at individual trials due to technical issues of evidence and limitation defenses. This judgement is worth reviewing in full for anyone involved in or interested in cases dealing with damages suffered through historic acts of institutional physical and sexual abuse.
Mr. Justice Bauman concludes his reasons by congratulating the parties on reaching compromise in the claim which is a sentiment well worth repeating.
Two judgements were released this week by the BC Supreme Court dealing with issues relating to civil claims arising in the context of alleged sexual assaults. The first case dealt with improper statements during closing arguments to a jury, the second with disclosure of records relating to a criminal prosecution.
In the first case (RK v. BR) the 17 year old Plaintiff became intoxicated at a party. The Plaintiff “stopped at his best friend’s home to see if he could spend the night“:. His friend was not home but his friend’s father let him spend the night. The defendant (the father) “sexually assaulted the plaintiff later that night.”
The Plaintiff sued for damages and selected trial by Jury. The Defendant admitted to the assault and during the course of the trial conceded that the Plaintiff was entitled to some damages. The question was what amount was appropriate.
During closing arguments the Plaintiff’s lawyer made statements to the Jury that the Defendant objected to. Particularly the Plaintiff’s lawyer “questioned the defendant’s decision to stay in the courtroom while the plaintiff testified. He suggested the jury could infer the defendant had remained in court to intimidate the plaintiff, or to draw pleasure from seeing his victim again. He also suggested the jury could infer that the defendant had been grooming the plaintiff for a sexual encounter. Plaintiff’s counsel also suggested to the jury that the plaintiff would see the defendant’s face whenever he made love.”
The Defendant argued that these comments were inappropriate and inflammatory and asked that the judge dismiss the Jury. Mr. Justice Brown reluctantly granted the motion. In doing so he provided the following reasons:
 Considering all the circumstances and applying the above framework to the case at bar, I find that the impugned portions of counsel’s submissions were highly prejudicial. First of all, the submission that the plaintiff will see the defendant’s face every time he makes love for the rest of his life has no foundation in the evidence. It was a highly speculative statement, with the sole purpose of inflaming the jury against the defendant. Counsel for the plaintiff says the statement did have a basis in the evidence because the plaintiff testified that he remembered the assault a couple of times a week, sometimes upon waking. He says Dr. Pulleyblank’s evidence that similar situations could trigger painful memories is a further factual basis for his argument.
 This argument is unconvincing. The evidence counsel relies on does not support the inference he asked the jury to draw; especially given evidence from the plaintiff that directly contradicts this statement. The plaintiff testified that since the assault he has had a positive sexual experience. There was also evidence that the plaintiff’s symptoms of posttraumatic stress disorder have diminished over time. To suggest the plaintiff would see the defendant’s face every time he made love for the rest of his life was more than mere rhetoric verging on the extravagant; it was a highly inflammatory statement that had no basis in the evidence.
 Likewise, counsel’s statement that the defendant groomed the plaintiff for a sexual encounter by inviting him to sleep over and providing him with alcohol has no basis in the evidence. Counsel says the basis for it lies in several statements made during trial. He relies on the statement of the plaintiff’s mother that two or three months earlier the defendant had phoned to ask if the plaintiff could sleep over. Counsel for the plaintiff also points to the plaintiff’s testimony that the defendant sometimes bought beer for his son and his friends. He also relies on the defendant’s testimony that in his youth he arranged consensual sexual acts with other males by asking them to ‘sleep over’. He says these statements, taken together, provide a basis for the jury to draw an inference that the defendant was grooming the plaintiff for a sexual encounter.
 The evidence does not provide a foundation for the statement that the defendant was grooming the plaintiff. There is no evidence the assault was premeditated. The defendant admitted he had called the plaintiff’s mother at an earlier time, but this was at his son’s request and to let the plaintiff’s mother know it was all right for the plaintiff to sleep over. The plaintiff’s arrival on the defendant’s doorstep that evening was clearly unplanned. Again, the sole purpose of this statement was to inflame the minds of the jury against the defendant. It was improper and amounts to misconduct.
 Counsel’s comments on the defendant’s presence in the courtroom were also inflammatory and prejudicial, and amount to misconduct, especially in light of the exchange of letters between the parties prior to trial. A party has a right to be in a courtroom. To suggest otherwise is improper. Even more improper is the suggestion that the defendant remained in court to intimidate or leer at the plaintiff. The defendant expressed a willingness to absent himself from the courtroom to spare the plaintiff’s feelings. Casting aspersions on a party for exercising his right to be present is misconduct. Suggesting a lack of empathy for remaining in court when counsel knew he had received a letter from the counsel for the defendant specifically offering to absent himself if doing so would make the plaintiff feel more comfortable is also misconduct.
 Counsel’s submission significantly prejudiced the defendant. The submission was relatively short. Taking all of Mr. McLeod’s inflammatory and improper statements together, I concluded that if I were to try to disabuse the jury of these matters I would simply re-emphasize them in the jurors’ minds. If I instructed the jury to disregard these portions of counsel’s brief submission entirely, my comments would likely rebound against anything he had said and against the plaintiff’s case. I concluded that I could not right the scales of the resulting prejudices with instructions anywhere close to neutral again. I must ensure there is no prejudice to either side. I do not see how any corrective judicial comments could do anything but suggest that counsel had misled the jury, intentionally or not.
 A judge discharges a jury with great reluctance. In this case, the jury was well constituted. They were attentive. At the beginning of the trial, I carefully explained their important role in the judicial system in British Columbia and the confidence placed in them. Discharging a jury in these circumstances embarrasses the court and, more importantly, tends to undermine public confidence in the justice system.
 However, given the circumstances, and considering the potential prejudice, no less to the plaintiff’s case then to the defendant’s, it would be unfair to continue with the jury in the circumstances. The only appropriate response was to discharge the jury with the regrets and thanks of the court.
 The defendant’s application to dismiss the jury and continue by judge alone is granted.
The second case released this week addressed the ability of a party to have the BC Supreme Court order production of materials relating to criminal charges arising from allegations of sexual abuse.
In this case (The British Columbia College of Teachers v. British Columbia (Attorney General) ) a former teacher was “criminally charged with sexually offending against a child.“. In the course of the prosecution a preliminary inquiry was held and the alleged victim testified. The Attorney General stayed the prosecution before trial.
The BC College of Teachers wanted to access a copy of the transcript of the preliminary inquiry evidence to use against the former teacher in “disciplinary proceedings“. The former teacher opposed this.
Madam Justice Griffin ordered that the records be produced and provided the following reasons:
 In an analogous context of considering an ongoing publication ban, the Court of Appeal of this province considered that a trial judge’s analysis should not be based on whether a benefit to the administration of justice could be gained by the publication of redacted information, but rather, should be based on whether a serious danger could be avoided by declining to provide the information: Global BC, A Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169 at para. 72.
 Here, so long as the information is provided in a way that protects the identity of the complainant and thereby maintains the publication ban, there is no danger to be avoided by declining to allow the sought-after information to be provided. To put it another way, I do not consider that the administration of justice will be harmed if the preliminary inquiry transcript is produced to the College in a way that continues to protect the identity of the complainant.
 I am therefore persuaded that this is a case where I ought to exercise my inherent jurisdiction to allow for production of a transcript of the preliminary inquiry to the College, in such a way as to continue to maintain the publication ban pursuant to s. 486.4(2).
 In the circumstances of this case, I grant the following declaratory relief:
(a) the publication ban imposed under s. 539(1) of the Code in relation to Abbotsford Provincial Court Registry file No. 60526, no longer applies, and thus does not apply to any request by the College for a copy of the transcript of the evidence that was taken at the preliminary inquiry; and
(b) the continuing publication ban imposed under s. 486.4(2) of the Code will not be violated if the Crown redacts all information that could identify the child complainant from the transcript of the evidence that was taken at the preliminary inquiry in Abbotsford Provincial Court Registry file No. 60256 and produces the redacted transcript to the College for its use in disciplinary proceedings against Mr. Sidhu.
As I previously posted, in British Columbia there is no ‘cap’ on non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) when a victim successfully sues for harm caused as a result of sexual abuse.
So what compensation is a victim of abuse entitled to for non-pecuniary loss? Recently a case was released by the BC Supreme Court, Victoria Registry, discussing this area of the law. In this case (CCB v. IB) the Plaintiff succeeded in a civil suit for damages as a result of sexual abuse. The trial focused of quantum of damages.
The Defendant was the Plaintiff’s natural father. The abuse lasted for about 5 years when the Plaintiff was aged 5-9. The father was criminally convicted and served time in prison. The Plaintiff sued and was awarded close to $600,000 in total damages including $250,000 for her non-pecuniary loss.
One factor that is focused on in these claims is the severity and duration of the abuse. I won’t repeat the facts here but the nature of the absue is set out at paragraph 8 of the reasons for judgement. The plaintiff suffered harm as a result of the abuse. She was, however, described as ‘resourceful‘ and ‘resilient‘ and had ‘a good prognosis for recovery from many of the effects of her traumatic, parentified and neglectful early life experiences with her father‘.
Madam Justice Gray made the following findings with respect to the Plaintiff’s injuries and prognosis:
 I accept the opinions of Drs. Mills and Pullyblank described above. In summary, I find that the defendant’s abuse of the plaintiff has caused her the following:
(a) Generalized Anxiety Disorder, including additional features of trauma (including nightmares about the abuse and heightened trauma), phobia, and obsessive-compulsiveness/perfectionism;
(b) depression and intrusive thoughts about the abuse;
(c) lack of trust in others and lowered self-esteem;
(d) educational underachievement, particularly in reading and math, which has so far resulted in a one to two year delay in her educational progression and may result in an inability to meet the potential she would have had without the abuse.
 The plaintiff is described as resilient, and with proper assistance, her prognosis for increasing her education is good. She is likely to suffer flare-ups of psychological symptoms, and is at risk for future mental health problems.
In valuing the Plaintiff’s non-pecuniary damages at $250,000 the Court reviewed a handful of useful precedents and provided the following helpful comments:
 In the leading case Y.(S.) v. C.( F.G.) , (1996), 26 B.C.L.R. (3d) 155,  1 W.W.R. 229 (C.A.), the British Columbia Court of Appeal stated that the application of the “cap” on non-pecuniary damage awards set out by the Supreme Court of Canada in the trilogy Andrews v. Grand & Toy Alberta Ltd., ,  2 S.C.R. 229, 83 D.L.R. (3d) 452, Arnold v. Teno,  2 S.C.R. 287, 83 D.L.R. (3d) 609, and Thornton v. School District no. 57 (Prince George),  2 S.C.R. 267, 83 D.L.R. 480, is not appropriate for intentional torts of a quasi-criminal nature, such as sexual abuse.
 Because Y.(S.) lifted the cap on non-pecuniary damages in sexual abuse cases, the case law prior to Y.(S.) is of limited assistance.
 In Y.(S.), the Court of Appeal also stated that in sexual abuse cases aggravated damages do not form a separate head of damages. An award for non-pecuniary damages is assessed by taking into account aggravating circumstances, particularly in a case of sexual abuse, where the physical harm is not easily separated from the emotional and psychological harm. Aggravating circumstances include the relationship between the parties, particularly if it is one of trust, the duration of the abuse, the number of assaults, the age of the victim, the degree of violence and coercion, the nature of the abuse, the physical pain and mental suffering associated with the abuse, as well as lack of remorse on the part of the defendant.
 The Court of Appeal, at para. 55, noted the difficulties in quantifying damages in cases of sexual assault:
We are just beginning to understand the horrendous impact of sexual abuse. 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. The possible consequences of such abuse are not capable of critical measurement.
 And further, at para. 56:
Comparison with the awards made in similar cases is helpful in maintaining consistency, and therefore giving fair and equivalent treatment to all victims. But the impact on individuals in particular circumstances of sexual abuse is so difficult to measure that other cases can only provide a rough guide for assessment in this case.
 The case law discusses the harm to the victims, but it is not a significant factor in determining quantum in such cases. It is reasonable to presume harm, and as noted in Y.(S.), there are particular difficulties in measuring and predicting the lifelong effects of sexual abuse. The fact that the plaintiff presently appears to be “resilient” is not a reason to diminish her award of damages.
 The most significant aggravating factors are that the defendant was the plaintiff’s father and sole caregiver, that she was very young during the abuse, and that the acts were very invasive and serious. The most similar case is Y.(S.). In all the circumstances, the plaintiff is entitled to $250,000 for non-pecuniary damages.
I encourage anyone considering a BC Civil Lawsuit for damages for harm caused by historic sexual abuse to review this case and the precedents cited therein to gain a good understanding as to how BC Courts value pain and suffering and loss of enjoyment of life in these cases.
Another interesting aspect to this decision is the Plaintiff’s potential ability to collect on the judgement. As previously discussed, a successful civil lawsuit for damages may not be worthwhile if the responsible defendant does not have the ability to pay. Here the Defendant was criminally convicted and spent time in prison. He very well may not have had the means to pay the judgement. However, he was left an inheritance and the Court noted that this money “is available to be applied to a judgement in this case“.
Before getting into the time and expense of a civil lawsuit consideration should be given to the ability to collect on the judgement if the claim proves successful. If the person directly responsible for the assault has no financial means the law of vicarious liability should also be canvassed.
The history of clergy abuse and cover up now seems to be catching up with the Catholic Church more than ever.The Vatican’s latest reply to this crisis referring to the problem as “petty gossip” is perhaps yet another example of the Church’s less than appropriate response to a very serious and longstanding problem.
Coming from my professional background I can’t help but think of this scandal in legal terms.What I’d like to do here is to address the topic of Clergy Abuse without the subject of religion entering the analysis.In essence, a legal overview of the problem.
The question advanced in this post is simple; would the Church’s response to the Clergy abuse scandal withstand public scrutiny if the Church were nothing more than a large corporation?
When you remove religion from the Church what are you left with?The answer is a large, powerful, wealthy multi-national corporation.
To judge the Church by the standards we would apply to a corporation we need to first strip down the Church to some of its basic “corporate” elements.This corporation has a top down hierarchy (from the Pope, to Bishops to Priests).The “corporate” church also has the following:
1.Assets and personnel all over the world
2.A hiring policy that specifically only allows men to fill important positions (priests)
3.These employees are prohibited from having sexual relationships with women
4.These employees are prohibited from marriage
5. To fulfill the needs of the business the corporation requires these employees to have close contact with their customers (the parish)
6. To further fulfill the needs of the business these employees are required to sometimes form close relationships with young children
7.These employees teach the children that the corporation (the Church) is their only hope to eternal salvation
8.If the rules of the Corporation are not followed the children are taught the fate of their very soul is at stake.
When viewed this way it is clear we are dealing with a very powerful corporation.Now, let’s assume that some of this hypothetical corporation’s employees were guilty of acts of sexual abuse against children.Let’s further assume that the abuse of children by these employees was known by people in the hierarchy of the corporation, with the knowledge perhaps going as high as the CEO.Let’s also assume that the corporate response was the same as the Church’s has been to date. Lastly, let’s assume the CEO of the corporation told its shareholders that such “petty gossip” should not affect the organization’s well being.Reprehensible?Unimaginable?But this seems to be exactly what the Church’s response to the scandal has been.
How would we expect a corporation to act in these circumstances?I imagine we would expect the corporation to at the very least do the following upon learning of on-the-job criminal acts of its employees:
1.Fire the employee
2.Gather and preserve evidence documenting the criminal act
3.Contact the local authorities and report the crime
4.Cooperate in the prosecution against the employee
5.Contact the victims and offer assistance
6.Conduct a due diligence review and see if the scope of the criminal behavior is greater than what has already been revealed
7.Immediately take all reasonable steps to guard against this problem from arising in the future
The hypothetical corporation discussed in this post would never receive your or my business if they failed to take the above basic steps in the aftermath of a sexual abuse scandal, would it? If the corporation tried to cover up the abuse rather than take accountability they would not stay in business for long. The downfall of the organization would be swift and spectacular once news of such a scandal came to the public’s attention.
The good news for victims of abuse is that the Courts of British Columbia have little difficulty in treating Religious Organizations like corporations in Civil Lawsuits in the event of on the job sexual abuse. Abuse vicitms do have the right to sue not only their abuser but also their employers and in certain circumstances the ‘corporation’ can be held vicariously liable for the misdeeds of their ’employees’.
Here is a video I recently uploaded to YouTube providing a brief overview of some of the unique legal issues that provide an advantage to abuse victims when suing in the BC Civil Courts:
Last month I authored a handful of articles discussing some of the unique laws that apply to Civil abuse claim lawsuits. These include the law of limitation periods, the law of non-pecuniary damages, and the law of vicarious liability.
Due to some of the positive feedback I received after authoring these articles I thought it may be helpful to summarize some of my advice in this brief video. I hope this video and these articles are of some assistance.
Further to my recent posts on BC civil sexual assault claims addressing limitation periods and vicarious liability, I will now address another topic in this unique area of law – the assessment of non-pecuniary damages.
“Non-pecuniary damage” is the legal phrase that describes compensation for pain and suffering and loss of enjoyment of life. When a person is harmed at the hands of others, be it intentionally or negligently, the harmed individual is usually able to claim compensation for their losses including for non-pecuniary loss. Some of the factors that go into valuing non-pecuniary loss in British Columbia are discussed here.
Historically there was no ceiling in the amount of money that could be awarded to an injured plaintiff for non-pecuniary loss in Canada. This changed, however, in 1978 when the Supreme Court of Canada heard a “Trilogy” of cases and handed down a significant decision which held that there should be a cap on Canadian awards for non-pecuniary damages. Specifically the Canadian high court held that “Save in exceptional circumstances…an upper limit of non-pecuniary loss” should be set at $100,000.
This cap on non-pecuniary damages has been the subject of much criticism and recent court challenges, however, none of this has resulted in change. Unless there is legislative intervention or a reversal by the Supreme Court of Canada this cap will continue to remain in place. This figure has been subject to inflation and now, in 2010, the rough upper limit is set at approximately $320,000.
With that introduction out of the way that brings me to today’s topic. Does this ceiling for non-pecuniary damages apply to civil sexual assault cases? The answer is no and this was made clear by the BC Court of Appeal in a case named S.Y. v. F.G.C.
In the S.Y case the Plaintiff was the victim of sexual abuse. At trial a Jury awarded her $650,000 including $350,000 for non-pecuniary and aggravated damages. This amount greatly exceeded the Canadian cap on non-pecuniary damages which was at $260,000 at the time.
The Defendant appealed arguing that non-pecuniary damages in sex assault cases are caught by the trilogy therefore the Jury’s award was in excess of what was permitted by law. The BC Court of Appeal disagreed with this submission and made it clear that in British Columbia victims of sexual abuse are not caught by the Canadian cap on non-pecuniary damage awards. Specifically the Court held as follows:
I am not persuaded that the policy reasons which gave rise to the imposition of a cap in “the trilogy” have any application in a case of the type at bar…The policy considerations which arise from negligence causing catastrophic personal injuries, in the contexts of accident and medical malpractice, do not arise from intentional torts involving criminal behaviour…A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums. Insofar as damage awards may be so high as to be wholly erroneous, or wholly disproportionate, an appellate court may intervene to correct disparity, and to foster consistency…In 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. Judges, juries and appellate courts are in a position to decide what is fair and reasonable to both parties according to the circumstances of the case.
Just as with limitation periods and the principles of vicarious liability, the law of non-pecuniary damages in sexual assault claims in BC recognizes that these cases are unique and certain advantages are provided in prosecuting such claims in the Civil Courts.
This is the second in my series of posts on some of the unique topics in BC Civil sexual assault lawsuits. Yesterday I wrote about limitation periods, today I’ll address another important topic, the legal principle of “Vicarious Liability“.
Civil Lawsuits are designed to compensate victims who suffered harm at the hands of others. Since one of the primary goals of civil litigation is compensation it is important to obtain judgement against a Defendant who has the ability to pay. Otherwise the judgement may be worth little more than the paper it’s written on.
Lawyers call a judgement where a Defendant can’t pay a ‘dry judgement‘. Given the stress, expense and time invested in a civil lawsuit the process is hardly worth the effort if a successful plaintiff ends up with a dry judgement. In Civil sexual assault cases this often is a possibility.
Insurance contracts often contain exclusions for “intentional harm“. Civil suits for damages for sexual assault are ‘intentional tort claims‘ and these are often caught by intentional harm exclusion clauses. For this reason if a Defendant does not have assets (or applicable insurance coverage) a Plaintiff will have to consider whether a civil lawsuit will be worth the effort.
That is where the law of vicarious liability comes in. Vicarious liability is a legal principle which in certain circumstances extends liability (fault) for a wrongful act to governments, corporations and institutions. This doctrine can apply to intentional torts.
So in what circumstances can Courts impose vicarious liability in Canada? This was addressed by the Supreme Court of Canada in a case called John Doe v. Bennett. Specifically the Canadian High Court set out the following test:
20 In Bazley, the Court suggested that the imposition of vicarious liability may usefully be approached in two steps. First, a court should determine whether there are precedents which unambiguously determine whether the case should attract vicarious liability. “If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability”: Bazley, at para. 15;Jacobi, at para. 31. Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public. Effective compensation is a goal. Deterrence is also a consideration. The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future. Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts in two respects. First, the relationship between the tortfeasor and the person against whom liability is sought must be sufficiently close. Second, the wrongful act must be sufficiently connected to the conduct authorized by the employer. This is necessary to ensure that the goals of fair and effective compensation and deterrence of future harm are met: K.L.B., supra, at para. 20.
21 In determining whether there is a sufficient connection in the case of intentional torts, factors to be considered include, but are not limited to the following (Bazley, supra, at para. 41):
(a) the opportunity that the enterprise afforded the employee to abuse his or her power;
(b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);
(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
(d) the extent of power conferred on the employee in relation to the victim;
(e) the vulnerability of potential victims to wrongful exercise of the employee’s power.
The employer’s control over the employee’s activities is one indication of whether the employee is acting on his or her employer’s behalf: K.L.B., supra, at para. 22. At the heart of the inquiry lies the question of power and control by the employer: both that exercised over and that granted to the employee. Where this power and control can be identified, the imposition of vicarious liability will compensate fairly and effectively.
In the Bennett Case the Supreme Court of Canada went on to find that ‘diocesan enterprise‘ could be held liable for the intentional abuse of a priest. The Court stated as follows:
32 In summary, the evidence overwhelmingly satisfies the tests affirmed in Bazley, Jacobi and K.L.B. The relationship between the diocesan enterprise and Bennett was sufficiently close. The enterprise substantially enhanced the risk which led to the wrongs the plaintiff-respondents suffered. It provided Bennett with great power in relation to vulnerable victims and with the opportunity to abuse that power. A strong and direct connection is established between the conduct of the enterprise and the wrongs done to the plaintiff-respondents. The majority of the Court of Appeal erred in failing to apply the right test. Had it performed the appropriate analysis, it would have found the Roman Catholic Episcopal Corporation of St. George’s vicariously liable for Father Bennett’s assaults on the plaintiff-respondents.
This was a crucial finding since priests take a vow of poverty. Accordingly the Plaintiff may have faced a dry judgement if not for the doctrine of vicarious liability. When considering a civil action for damages from sexual assault its important to consider if a Defendant has the ability to pay. If not the analysis should extend to whether a Defendant with the ability to satisfy a judgement may be vicariously liable.