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Sue for Sexual Assault and Child Sex Abuse, Canada

Sexual Assault Lawsuits, Lawyers, Testifying, and Settlements.

While most Canadian victims of rape, sexual assault, and child sexual abuse know that offenders can be charged criminally, many are unaware that they may also sue assailants and their employers civilly to recover compensation for their losses. Unlike the criminal proceeding, seeking compensation in civil lawsuit does not always lead to going to court. In fact, most cases are resolved outside of the courtroom. In some instances, they are resolved before a lawsuit is even filed.

This page is meant to inform victims about the civil process. 

Overview of the Lawsuit Process

A sexual assault lawyer's first move is make a written demand of the assailant and/or their employer for a financial settlement. This can be done before a lawsuit is even filed. Depending on the evidence, the admissions of the assailant, the outcome of possible criminal actions, the value of the assailant's reputation, etc. it may be in the assailant's interest to settle the matter quickly and avoid the litigation process. Many churches and other institutions whose public reputation is on the line may be eager to avoid litigation if they know their case is weak. If a settlement is a reached, typically a confidentiality agreement is also signed to avoid any discussion of the matter by either side.

If no immediate settlement is reached, the Lawyer may then decide to file a Statement of Claim, which begins the legal process. Both sides will then have the opportunity to Discover (question under oath) each other. Also both sides will be obligated to release all evidence in their possession that is not subject to privilege to each other. Keep in mind this information cannot be given to third parties or used for anything but preparing for litigation. This full exchange of information allows both parties to see the totality of the case against them. At this point, many cases settle or are agreed to be dealt with through arbitration, mediation, or consultation (thus avoiding court).

If both parties feel it is in their best interest to proceed to Court, the case will be set for trial. In sexual assault matters, usually steps are taken to protect the identity of the victim. This can include preventing public access, blocking the media from reporting on the matter using the victim's name (or other names that may suggest the identity of the victims), preventing public access to the courtroom, and referring to the victim by something other than their name.

At trial both parties will likely take the stand and tell their story. Also, medical experts will likely testify to describe the victim's trauma and the effects that it would have on their well being. Sometimes, an economist or financial expert will testify to provide information to the court about income/employment losses. If there is any physical evidence, it will be presented to the court as well.

The court will then decide if the assailant is liable and determine the amount of damages (money) that are owed to the victim.

Testifying

If the case proceeds to Court, the victim will almost surely have to testify to the abuse that was suffered. There are two main elements of testifying: 1) direct examination, and 2) cross examination.

Direct Examination

The first step in testifying is called direct examination. Here, the victim's lawyer will ask open ended questions to the victim and allow the victim to tell his or her story. The goal of a successful direct examination is that the victim tells the story on their own, without help from their lawyer. Should the lawyer lead the witness into giving certain answers, it may be viewed as less persuasive by the judge.

Cross Examination

Cross examination gives the assailant's lawyer the opportunity to question the victim. Unlike in the direct examination, leading questions are allowed. Victims must be careful to listen to each question and only agree if they are 100% sure the question/proposition put to them is accurate. An example of a leading question may be: "You first met my client at your house, right?". Often times a lawyer will use previous statements (such as those taken at the discovery) to try and contradict the victim if the victim has made an inconsistent statement. So, for example, if the victim answered yes to the leading question above, the lawyer may then respond with "well in your statement on discovery you stated you met my client at church". By demonstrating an inconsistency, the assailant's lawyer is attempting to damage the credibility of the witness.

Testifying may be difficult, but it's important to the litigation process. Your goal is to be honest and tell the truth. Most lawyers will prepare clients quite well for testifying in advance so they know what to expect.

Financial Compensation/Damages

The first question many victims have is how damages are calculated. It must first be understood that the purpose of a civil judgment is to put the victim back in the place they would have been in had the wrong not been committed. Now as we all know, no amount of money can erase the pain of a sexual assault, but this is the theory that the courts work under.

The main areas that sexual assault victims seek compensation for are pain and suffering, future income loss, dimunition of earning capacity, and punitive damages. These individual heads of damages make up the overall lawsuit. This means a victim may get $150,000.00 for pain and suffering + $500,000.00 for income loss for a total of $650,000.00. You don't have to pick and choose one or the other - they operate together.

Pain and Suffering

This is a money quantification of the victim having to experience the sex assault itself, including any physical harm and subsequent emotional pain. In Canada, pain and suffering amounts are typically much lower than in most US states. In fact, the Supreme Court of Canada placed a cap on pain and suffering awards of approximately $300,000.00. This means even if you are rendered a quadriplegic in an accident, you'll receive no more than $300,000.00 for pain and suffering. Of course, pain and suffering is only one aspect of the overall lawsuit.

In sexual assault cases, pain and suffering amounts tend to range from $125,000.00 to $275,000.00. Now, no amount is guaranteed, but many courts in provinces across Canada have found awards in this range are warranted. In the case of Blackwater v. Plint, the Supreme Court of Canada upholds a ruling of compensation for pain and suffering for sexual assault victims of $125,000.00.

Future Income Losses or Dimunition of Earning Capacity

The income loss aspect of the claim is perhaps less well understood. The purpose of future income losses are to calculate how much money, if any, the victim would have earned over the course of her/his career had the assault not taken place. Generally, sexual assault effects employment in two ways:

1) education - the emotional damage of the assault causes victims to drop out of school, fail, or choose not to pursue a specific plan of education that would have allowed them to earn a higher income

2) ability to work - the emotional damage of the assault makes the victim less able to perform their duties at work or perhaps unable to work at all. They are thus missing time and/or are unable to move up the ladder of success in their profession.

Essentially, the courts will examine the individual's circumstances and attempt to make a calculation. Here are two examples:

Example #1

John was sexually assault as a child causing him to experience significant emotional trauma. As a result, he got in trouble in high school and eventually dropped out and got involved in alcohol/drug abuse. John worked sporadically throughout the years, but never established a career for himself. His average income was approximately $13,000.00/year.

Here, the court may find that had John not been abused he would have graduated high school and obtained a middle class career with an average income of $35,000.00/year. He thus lost $22,000.00 (35,000.00-13,000.00) per year as a result of the assault. Assuming he works until age 60 and started working at age 20, he is out $22,000.00 multiplied by 40 years. This totals $880,000.00.

Example #2

Jane was in dental school when she was sexually assaulted. As a result, she dropped out of school and now only makes $20,000.00. As a dentist, she could reasonably expect to make $120,000.00 per year. She is thus out $100,000.00 per year. Assuming she started working at age 28 and retired at age 60, she is out $100,000.00 multiplied by 32 years. This totals $3,200,000.00.

As you can see, the calculation may differ substantially depending on the circumstances.

Punitive Damages

Punitive damages are awarded to punish the assailant for his actions. Punitive damages are fairly rare, but not unheard of in sexual assault cases. In fact, the amount of punitive damages awarded will be proportional to the wealth of the perpetrator (or their employer in cases of vicarious liability). $10,000.00 would be punishment for most people, however it would not be for a billionaire or large company - that is why it varies.

The famous McDonald's coffee lawsuit case involved a large punitive settlement. The reason the victim received so much money was because the court felt a large company like McDonald's wouldn't be punished with a smaller sum (not because the court felt the pain and suffering from a coffee burn was worth millions).

Statute of Limitations

Each province limits the amount of time a person can wait before suing. How then do sexual assault victims sue decades after the abuse has occurred? There is an exception that when a person is unaware of their losses, the time period only starts when the person becomes reasonably aware of their losses. The courts have founds that in many sexual assault cases the trauma causes victims to be unaware of their losses for many years.

The statute of limitations may still be a problem for some depending on the facts of their case, but certainly there is room for many to avoid it.

Out of Court Settlements

While this article refers to the court process and judgments of the court, in reality most cases never reach the courtroom. The court cases are still relevant however as they dictate the playing field. Cases are settled because both sides believe they can anticipate in advance what will happen in court and how much money will be awarded.

Settling out of court can be advantageous for both sides. For one reason, it saves the victim from having to testify in court and recounting the details of the abuse. It also saves the assailant (and many times the assailant's employer) from having their name and reputation damaged by being associated with the assault. It also allows a resolution to be arrived at significantly sooner and eliminates the risk for both sides of going to court and having an unfavourable ruling.

Arbitration and Mediation

There is also a possibility that the civil suit will be handled by way of Arbitration or Mediation. Mediation means a third party neutral will attempt to work with both sides to resolve the case. Arbitration means a third party will hear both sides and decide the case similar to how a judge would. Unlike in Court, with Arbitration the parties are able to choose the terms of the hearing themselves. For example, a set monetary range may be agreed in advance for the Arbitrator to decide within.

 Dealing with case through Arbitration and/or Mediation has four main advantages:

      1. cost/time - the matter is resolved quicker thus significant fees are avoided
      2. confidentiality - the process can be kept private along with the outcome
      3. risk - parties can agree to specific terms to alleviate risk

Difference between Civil and Criminal trials

It's important to underscore that the civil proceeding (which refers to suing, demanding, or filing a lawsuit) is completely separate from any criminal proceeding. While a criminal conviction is very good evidence against the assailant, you can still sue civilly even if the assailant is found not guilty. That's because the criminal proceeding and the civil proceeding have a different standard of proof. In a criminal proceeding the standard of proof is "beyond a reasonable doubt" (some have described this as being 95% sure), in the civil cases the standard of proof is a "balance of probabilities", which essentially means more likely than not (or more than 50% sure).

Lawyers' Fees

How much will it cost to retain a lawyer? Generally, personal injury litigation is conducted on a contingency fee basis. This means the lawyer's fee is contingent upon a percentage of the final settlement or award. Normally, most contingencies are set around 1/3 of the final amount.

The advantage of a contingency fee is that the client/victim does not have to come up with thousands of dollars to pay the lawyer on an hourly basis. Moreover, if they lose the case, no legal fees are payable. Contingency fees thus allow access to justice.

Another issue is disbursements, which are the costs associated with carrying the file (medical reports, expert fees, filing fees, office fees, service fees, etc.). Usually the lawyer will cover disbursements upfront and will be reimbursed out of the final settlement. Depending on how the contingency agreement is structured, the client may be responsible for contingency fees in the event of a loss.

Medical Reports

Virtually all personal injury files will require medical reports from a Doctor describing the condition of the victim. In sex assault matters, medical reports are essential for showing the psychological trauma that the victim has suffered.

Who Pays? - Vicarious Liability

One very important factor of any case is the ability to collect on a judgment against the assailant. This means getting the money that is actually awarded to you. For example, if the court awards you $500,000.00 you need to be able to collect that money from the assailant. This order must then be enforced, meaning you can sell the assailant's assets, acquire bank accounts, garnish wages, etc. The problem for many is that the assailant does not have the assets to pay off the judgment (even after you take his house!), in such cases usually the victim is out of luck.

Many times, sexual assault lawsuits are paid out because the assailant's employer is found to be vicariously liable for the damages. For example, if a Priest sexually assaults someone, the Catholic Church may be left to pay the judgment. Also, if the assailant is a Government employee, the Government could be on the hook.

In cases where there is no vicarious liability, and the assailant is judgment proof (has no money or assets), it may not be worth the trouble of suing. This is a problem for many victims, but unfortunately you can't get blood from a stone.

Can assailant declare bankruptcy to avoid paying judgment?

Section 178 of the Bankruptcy and Insolvency Act has a specific provision addressing this issue. It reads:

178. (1) An order of discharge does not release the bankrupt from

        (a.1) any award of damages by a court in civil proceedings in respect of

     (i) bodily harm intentionally inflicted, or sexual assault



Disclaimer: All information on this page is of a general nature and may not apply to any specific circumstance. It is not to be construed as legal advice or presumed to be completely accurate, or infinitely up to date. If you have questions regarding your case, please contact a local lawyer immediately because there are time limitations on civil claims. Failure to contact a local lawyer immediately could prevent you from making a claim.



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