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General Damages for Less Severe Sex Abuse Claims: N.S. Court Adds New Range

Published:

June 12, 2023

Author(s):

• Catherine Hirbour
• Melanie Comstock, KC

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The Nova Scotia Supreme Court has added a new, lower range for general damages in sexual abuse civil cases. Damages in sex abuse cases are always fact dependent. But in general, they have been trending up, particularly in cases of childhood sexual abuse. However, the Court’s February 2023 decision in A.B. v. Main creates a new, lower range for sex abuse that is invasive and serious and has had a significant effect on the plaintiff but isn’t “at the more severe level”: $45,000 to $167,000.

The Trend for General Damages in Sex Abuse Claims

In a 1978 trilogy of cases, the Supreme Court of Canada suggested a $100,000 (approximately $455,000 in 2023) “cap” on general damages in personal injury actions to promote both uniformity and flexibility. However, in its 1996 decision in S.Y. v. F.G.C., the B.C. Court of Appeal suggested a damages award to sexual abuse survivors performs a function different than that in other personal injury damages and could justify diverging from the “cap” because of the unpredictable impact of the sexual abuse on their lives. Courts have appeared willing to take a case-specific approach to assessing damages in sexual abuse cases based on the unique harms, and to treat general damages for sexual abuse claims differently and not necessarily subject to any “cap”. Some courts have suggested ranges for general damages in sex abuse cases, for example:

Nova Scotia. In its 2007 decision in Nova Scotia (Attorney General) v. B.M.G., the Nova Scotia Court of Appeal set the appropriate range for severe and continuing abuse of a child  by an adult in a position of trust and that caused or contributed to ongoing negative effects on the victim at $125,000 to $250,000 ($175,000 to $350,000 in 2023). There, a physically and emotionally vulnerable 13-year-old child was subjected to repeated assaults, including oral sex and anal rape over about two months by his probation officer. The sexual abuse had a powerful and prolonged emotional impact on the victim and led to loss of educational, social and vocational opportunities.

Ontario. In its 2020 decision in C.O. v. Williamson, the Ontario Superior Court set out a range of general and aggravated damages for sexual assaults on a child by a person in a position of trust at $150,000 to $450,000 ($172,000 to $518,000 in 2023). There, a vulnerable 16-year-old child was subjected to over 10 assaults, including touching, kissing, and several incidents of both oral sex and anal rape, over four months by a trusted teacher and mentor. The victim suffered serious emotional and psychological problems, including depression, suicidal ideation and self-harm and caused her to enter an abusive marriage.

A New Lower Range of General Damages in N.S. Sex Abuse Claims

In A.B. v. Main, the Nova Scotia Supreme Court concluded that an appropriate present day range for general damages for invasive and serious sexual abuse that does not reach the more severe Nova Scotia (Attorney General) v. B.M.G. level is between $45,000 and $167,000.

The Case. the 29-year-old Defendant abused the then seven-year- old Plaintiff. The Defendant acknowledged a dozen incidents of abuse and pleaded guilty to touching the Plaintiff for a sexual purpose contrary to s. 151 of the Criminal Code of Canada. The incidents involved touching and fondling and one instance where the Defendant exposed his erect penis and touched the Plaintiff’s genitals. Before this abuse, the Plaintiff was a curious and “happy-go-lucky child”. After the abuse, he became disruptive, confrontational with authority and developed substance abuse issues.  He only completed grade nine, never finished high school and became involved in criminal activity.  After a stay at a juvenile detention facility, his criminal behaviour (other than illegal drug use) ended. Throughout his life, he’s held jobs for short periods and has had difficulty with interpersonal relationships. While the Court accepted there were numerous factors that could have contributed to the Plaintiff’s issues, it was satisfied the Defendant’s abuse caused the Plaintiff “serious and prolonged psychological or mental injury”.

The Arguments. The Plaintiff sought $175,000 in general damages based on Nova Scotia and Ontario decisions, including Nova Scotia (Attorney General) v. B.M.G. The Defendant argued the general damages range should be $25,000 and $42,000 based on British Columbia and Saskatchewan decisions.

The Decision. The Court considered several decisions from across Canada, many involving minors, and all of which awarded damages exceeding $120,000 (in 2023 dollars). Ultimately, the Court applied the four criteria to consider for non-pecuniary damages in sexual battery cases the Supreme Court of Canada outlined in its 2005 decision in Blackwater v. Plint. The Court concluded the appropriate range for non-pecuniary damages for sexual abuse for invasive and serious but not at the more severe level is between $45,000 and $167,000 and awarded the Plaintiff general damages of $110,000:

• The victim’s circumstances at the time of the events, including factors such as age and vulnerability. The Court found the sexual abuse of a seven-year-old child to be particularly egregious.

• The circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were. The Court found that although the Defendant’s “physical interference with the Plaintiff was less pronounced than in some other cases…” the assaults were invasive and degrading.

• The defendant’s circumstances, including age and whether they were in a position of trust. The Court found the Defendant was in a position of trust: he was a trusted neighbour, had regular contact with the Plaintiff and they shared similar interests.
• The consequences for the victim of the wrongful behaviour including ongoing psychological injuries. The Court found that although some cases involve abuse that is “much more invasive”, the abuse had a profound impact on the Plaintiff.

Please contact your McInnes Cooper lawyer or any member of our Insurance Defence Team @ McInnes Cooper to discuss how we can help you resolve sexual abuse claims.

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