The purpose of the damages for the sexual wrongdoing such as assault and battery is not intended solely to compensate purely for physical or mental injuries suffered by the victim.
Its goal is broader, intending to “provide solace for the victim’s pain and suffering and loss of enjoyment of life, to vindicate the victim’s dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts”.
The Relevant Persuadors
The factors to be considered will include:
- The circumstances of the victim, including their age and vulnerability;
- The context of the assault(s), the number of them, frequency, the degree of invasiveness, and the extent of violence, and degradation;
- The position of the wrongdoer, including their age, and whether the wrongdoing emanated from a position of trust;
- The consequences of the wrongdoing upon the victim, including whether there was an ongoing psychological trauma.
Look to Comparable Cases to Define the Range
Once these factors have been weighed, the court must then examine similar fact situations to determine the appropriate expanse of the relevant range of damage awards. This analysis has been described as one of “horizontal comparison”. This is an exercise in examining similar cases to show a pattern of comparable facts and then determine the range attributed to such awards, adjusted by inflation where required.
In the BMG decision, the trial judge had found that the appropriate range for non-pecuniary damages was from $125,000 to $250,000 and proceeded to award the sum of $125,000.
The facts of the case were particularly unattractive. The victim was 14 years old when he was anally raped by a grown male adult. He was diagnosed as suffered from Post-Traumatic Stress Disorder of a chronic nature. The trial judge also found that part of the emotional issues suffered by the plaintiff were due to his abusive home life. The trial court also noted that he did not suffer from erectile dysfunction or substance abuse.
It was noted that the abuser was in a position of trust and that there was a considerable age difference. It was also observed that the assaults were “of relatively short duration”, yet of a disturbing nature.
On the appeal initiated by the A-G yet, it was argued that the damage range missed the mark by using an inappropriate comparable range of cases, resulting in an excessive award. This is often the basis of the appeal as once the range has been determined, the trial judge will be allowed considerable discretion to set the damage award within the relevant range,
The Court of Appeal found in favour of the trial judge’s appointed range, reasoning that there was in this instance severe and continuing abuse, effected upon a child by a trusted adult and which contributed to or caused ongoing negative repercussions to the plaintiff victim.
The trial decision was upheld.
OCA Recent Review
The Ontario Court of Appeal recently considered the same question in the proper assessment of a damage claim for sexual assault. In this instance, the offence took place on a unique occasion, involved forced intercourse by the male physician upon a female colleague at the home of the male co-worker.
The appellate court concluded that the trial judge had rightly considered the factors as set out above and proceeded to identify the relevant range of the possible damage award.
The trial judge awarded $175,000 as compensatory damages and $25,000 for punitive damages. In assessing the first question of the damage range, the trial judge determined this to be from $144,000 to $290,000.
The appellant had suggested, unsuccessfully, that the incorrect range had been applied and that the appropriate range was from $20,000 to $50,000. This became the substantive ground of appeal on this issue.
The trial judge’s determination of the appropriate range for cases of this genre was accepted, as was the ultimate damage assessment within this range.
The punitive damage award was also upheld. The argument was advanced by the appellant that the trial judge had failed to consider whether the compensatory damages were sufficient to accomplish the objective of deterrence and punishment and because the wrongdoer was not criminally charged. This argument also failed as the Court of Appeal determined that the conduct was morally reprehensible and worthy of condemnation. The fact that he was not charged criminally was not the motivator for the award.
Costs were also awarded by the trial judge of $325,000. The scale of costs is not apparent in the trial decision.
Comparator of Human Rights Cases
Tribunal decisions in Ontario, clearly the most generous forum for human rights claims in Canada, would not have been nearly as high. These facts would likely have seen a compensatory award in the range of $50,000.
There are no punitive damages allowed in the Ontario tribunal, nor are costs awarded.
While the law may well be that medical evidence is not required to prove a recognizable mental injury, clearly professional evidence is the best means of proving the case.
The same analysis used in the tort cases has not been used in human rights claims.