Sex abuse survivor awarded $100K

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This article was published 07/03/2017 (3447 days ago), so information in it may no longer be current.

It is a question Manitoba courts have rarely wrestled with but one that legal experts believe will be asked more often: what is the financial cost a sexual assault can have on a victim?

A civil court lawsuit has attempted to do just that, awarding a Manitoba woman $100,000 for abuse she suffered as a child at the hands of her cousin. The victim was seeking $3.6 million in total damages.

She acted as her own lawyer in court, saying she couldn’t afford to hire legal representation, and came up with the figure based on what she projected as the financial loss of being unable to work in her chosen profession, due to “complex post-traumatic stress disorder.” She cited an average $125,000 per year salary as a lawyer, which she said she’d hoped to be, and projected her lost earnings for 20 years between 2013 and 2033.

“She related that she was currently enrolled in university and had aspirations to go to law school, but she had difficulty completing educational programs because of concentration and memory problems due to the trauma,” Justice Marc Monnin wrote in a recent decision that upholds a lower court ruling.

The woman was just four years old when the abuse occurred in the 1980s; her male cousin was 12 at the time. The cousin failed to respond to the lawsuit and was ultimately found in default without the matter even proceeding to a trial.

There is no indication of any criminal court proceedings ever occurring. The woman sought to have her requested amount ordered as a subsequent judgment, but the Manitoba Court of Appeal has found there’s no basis for such a high amount.

“The motion judge concluded that, while she was satisfied that the plaintiff had suffered from significant mental health issues which likely affected her ability to complete her education and become gainfully employed, there was, in her view, no basis on the evidence by which to quantify the loss to the extent the plaintiff claimed,” Monnin wrote.

In addition to seeking a loss of a lawyer’s salary, the woman also wanted to be compensated for the costs of future therapy, as well as $500,000 in general damages for “pain, injury, suffering and loss of enjoyment of life.”

The Appeal Court said the woman’s choice of self-representation in such a complex proceeding ultimately may have cost her some cash.

“This is a difficult case made more difficult by the lack of counsel to represent the plaintiff. It has meant that her case has been presented without the benefit of evidence which would normally be expected in cases alleging substantial loss of past and future income and non-pecuniary losses,” Monnin wrote.

“That the outcome may have been different for the plaintiff had she received legal advice and been able to present the case with greater detail is unfortunate.”

Cheryl Pearson, a lawyer with Thompson Dorfman Sweatman, recently wrote an article for the firm’s website at tdslaw.com, in which she sets out the criteria and guidelines for this kind of suit. Peterson wrote that a growing number of victims of sexual abuse are now turning to the civil courts.

“Civil litigation, while imperfect, may be an empowering and effective means by which victims of sexual abuse can have an opportunity to confront their abuser, be heard, and obtain some recognition of the harm they have suffered through financial compensation,” Pearson wrote.

Unlike other civil areas of law, sexual abuse claims have no statute of limitations. The burden of proof is on a “balance of probabilities” and not the “beyond a reasonable doubt” standard required in a criminal court.

As this recent Manitoba case shows, a defendant who doesn’t respond to the claim typically is found in default and a judgment against that person is ordered.

So how much is a successful claim worth?

Pearson said the cap for personal injury civil claims in Canada is just over $350,000, but no such cap exists in sexual assault cases.

A scan of case law across the country shows the majority of cases have come in well under that $350,000 mark, according to Pearson.

“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 presently are not capable of critical measurement,” the British Columbia Court of Appeal has previously stated in a civil case on the issue.

In this recent Manitoba case, the woman had also sued her cousin’s parents on the grounds they also should be held liable. However, the court struck out that claim on the grounds there’s no evidence they were even aware of what their son had done to her.

The cousin has been ordered to pay the $100,000.

“I am of the view that, while the plaintiff was not in a position to present the best case possible, she presented the case that she chose to in the circumstances. Appellate intervention is not warranted,” Monnin wrote at the conclusion of his decision.

mike.mcintyre@freepress.mb.ca