The law related to civil damages in claims for long term sexual abuse has developed significantly over the past number of decades. Courts now recognize the potential devastation that can be caused by exposure to long term sexual abuse, notably in young children.
The law related to clams for a sexual assault is not nearly as developed. However, victims of sexual assault are now more readily bringing claims for damages in our civil courts.
In this context, the Ontario Court of Appeal, in Zando v. Ali (2018 ONCA 680), recently looked at how courts can assess non-pecuniary damages in sexual assault cases.
Trial Decision
Iram Zando brought a civil claim for damages against Syed Ali based on her allegation that he had sexually assaulted her at her home on June 22, 1999. At the time of the assault, both parties were physicians, friends and colleagues at the Sarnia General Hospital.
Following a three week trial, Morissette J. found, on a balance of probabilities, that the assault had occurred and awarded the plaintiff general damages of $175,000, punitive damages of $25,000, pre-judgment interest of $155,773.97 and costs of $325,000.
Appeal Decision
The defendant appealed the assessment of damages.
The defendant took the position that the trial judge erred in her assessment of general damages by considering claims involving much more serious, long term abuse.
For example, in determining the appropriate range of non-pecuniary damages, the trial judge had considered cases such as Nova Scotia v. B.M.G., a case involving repeated sexual assaults on a child by a person in a position of trust and Evans v. Sproule, a case involving a police officer who sexual assaulted a woman he had detained during a traffic stop.
The defendant argued that this assault was a single incident involving persons of equal status and there was no evidence of any long term psychological trauma. Therefore, the damage award should be significantly reduced.
The Court of Appeal rejected these arguments and found that it was open to the trial judge to adopt the range of damages in line with those found in long term abuse cases and assault cases with a significant power imbalance.
The trial judge correctly identified specific features of the assault consistent with the purpose of such damage awards, such as the plaintiff's subsequent feelings of shame, guilt, humiliation and degradation.
A court does not require a finding of long term psychological trauma in order to award significant damages. This is because damages for sexual battery and assault are not awarded just to fully compensate for the physical and mental injuries.
One of the key purposes of non-pecuniary damages in sexual assault and battery cases is "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 humiliation and degrading nature of the wrongful act."
Conclusion
Case law is now starting to develop in these types of civil sexual assault claims with recognition of the serious impact of sexual violence, regardless of the relationship between the parties or number of times it occurs.
Factors such as shame, guilt, humiliation and degradation can exist following any type sexual assault. Damage awards will likely start to greater recognize this fact.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
