Apr 11, 2020

D.S. v. Quesnelle is a 2019 personal injury lawsuit arising from a sexual assault, where the judge awarded the plaintiff $400,000 in non-pecuniary damages.  Non-pecuniary/general damages are awarded to a plaintiff for their non-economic losses, such as pain and suffering.  This amount exceeds the $350,000 cap for non-pecuniary damages normally applied in cases of severe personal injury. Justice Smith asserted that a higher award is appropriate in this case because sexual assault victims typically don’t receive damages that provide lifetime financial security. Further, “sexual abuse victims may require and deserve more than the "cap" allows, due to the unpredictable impact of the tort on their lives”. 

D.S. v. Quesnelle involves a plaintiff who was sexually assaulted by his step-father numerous times over a five-year period, when the plaintiff was between the ages of 5 and 11.  The plaintiff gave evidence that he was ritually forced to perform oral sex on his mother’s partner in the shower every weekend, beginning at age 5, and there were likely around 250 individual acts of assault during this period.  The stepfather, who was in a common-law relationship with the plaintiff’s mother, was convicted of several criminal charges in connection with these assaults, including assault, sexual assault and sexual interference.  Justice Smith found that these criminal convictions serve as proof that the defendant sexually assaulted the plaintiff.

The sexual abuse had a profound effect on the plaintiff’s mental and emotional health and have prevented him from trusting, and having any sort of relationship with, any men.  During his teens, the plaintiff became an alcoholic; lived on the streets for approximately 6 months; and was only able to complete a Grade 9 education.  His lack of education limited his employment opportunities and when he did have a job, he found it difficult to focus and complete work tasks on an ongoing basis.  Further, the plaintiff’s difficulty in trusting his supervisors, who were typically men, contributed to his work challenges.  The plaintiff eventually got married and completed a one-year college program; however, ongoing mental issues and drinking caused the breakdown of his marriage and effected his ability to maintain continuous employment.

A psychiatrist who assessed the plaintiff found that he meets the diagnostic criteria for the following psychological conditions:

  • post-traumatic stress disorder (PTSD),
  • major depressive disorder,
  • generalized anxiety disorder,
  • bipolar disorder type 2, and
  • substance misuse disorder (which was in remission at the time of the trial).

The plaintiff’s psychiatrist also concluded that his prognosis for recovery is “guarded” at best.

The plaintiff had been unemployed for 4 years prior to the trial.  A psycho-vocational assessment of the plaintiff reported that he suffers from “a complete inability to work in any capacity at this exact time” and his psychological problems and struggles with alcoholism have had a huge impact on his competitive advantage in the workplace. The authors of the report also asserted that it’s reasonable to suggest that the plaintiff’s working life has been shortened, although the degree of the impact is difficult to determine exactly.

In addition to his work challenges, the Court recognized other potential impacts for victims of sexual abuse.  The Court referred to Justice Feldman’s decision in R. v. D.M. (2012), where it was noted that children are particularly vulnerable to sexual predators and there are now three generally accepted consequences for children who suffered sexual abuse:  1) immediate physical and psychological harm; 2) the potential inability to ever form a loving and caring relationship with another adult; and 3) the propensity to become abusers themselves when adults.

Based on the evidence, Justice Smith found that the plaintiff’s psychological problems and substance abuse issues would, on the balance of probabilities, not have happened “but for” the sexual abuse he suffered.  The judge asserted that “the defendant took an innocent five-year-old boy, used him horribly for his own purposes and satisfaction for five years before effectively discarding him and leaving him to deal with the fallout from that horrible mistreatment”. 

Determination of damages

Caselaw has set a cap or maximum for non-pecuniary damages in catastrophic personal injury cases, which is approximately $350,000 when adjusted for inflation.  Notable cases which established this cap (which was initially set at $100,000) include Andrews v. Grand and Toy Alberta Limited (1978), Thornton v. District No. 57 (1978) and Arnold v. Teno (1978). 

The cap has increasingly been challenged for cases of personal injury resulting from sexual assault.  In a notable case, S.Y. v. F.G.C. (1996), the B.C. Court of Appeal was asked to decide whether the $350,000 awarded by a jury for non-pecuniary damages in the original trial was inordinately high and should not stand. Like the current case, the B.C. case involved a minor who suffered repeated sexual abuse by her stepfather.

In S.Y. v. F.G.C., the appeal court held that the reasons for imposing a cap on general damages in catastrophic injury negligence lawsuits do not apply in personal injury actions arising from criminal behaviour.  The court asserted that there is no evidence that a cap is “needed to protect the general public from a serious social burden, such as enormous insurance premiums”.  In sexual abuse cases, the awarded damages typically don’t guarantee lifetime financial security, and due to the unpredictable impact of the injury on the plaintiff’s lives, victims of sexual abuse “may require and deserve more than the “cap” allows”.  However, the B.C. Appeal Court did reduce the general damage award to $250,000, on the basis that the amount awarded in the S.Y. v. F.G.C. trial is “wholly disproportionate” to the amount awarded in P.B. v. W.B. (1992), which the Appeal Court believed was the “worse case” of sexual abuse considered by the courts.

P.B. is a shocking and tragic case which involved a pattern of ongoing sexual assault by the plaintiff’s father, beginning when the plaintiff was five years old and continuing to the age of 17. Between the ages of 7 and 10, the plaintiff was subjected to sexual assault, including sodomy and vaginal intercourse, 3 or 4 times a week.  The plaintiff in this 1992 lawsuit was awarded $100,000 in general damages as well as $75,000 in punitive damages.

The findings in S.Y. v. F.G.C. have been referred to and followed in other decisions made by Ontario and B.C. Courts of Appeal, including Henry v. British Columbia (Attorney General) (2017) and Padfield et al v. Martin et al (2003).  Padfield et al also referenced the Supreme Court of Canada decision in Hill v. Church of Scientology of Toronto (1995) where the court found that the cap does not apply in defamation cases.

In the current case, Justice Smith agreed that the cap for non-pecuniary damages should not apply, particularly given the profound impact the defendant’s actions had on the plaintiff’s life. In addition to the award of $400,000 for non-pecuniary damages, the judge awarded the plaintiff over $1.5 Million in economic damages for past income loss and loss of future earnings.  

In determining the plaintiff’s economic loss for future earnings, Justice Smith referred to calculations of expected lifetime earnings for a high school graduate and expected lifetime earnings for a college graduate, “absent abuse potential earnings”, based on Statistics Canada data.  Based on a finding that the plaintiff’s psychological conditions have had a substantial impact on his competitive advantage, the judge chose to award damages based on the upper end of projected earnings.


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