You've probably heard the expression "as American as apple pie." When our public broadcaster ran a contest asking its audience to come up with a similar expression for Canada, the CBC aptly chose "as Canadian as possible under the circumstances" as the winning entry.
Those circumstances are, to a large degree, the undeniable influence of the American culture and economy on our society.
To retain a distinct sense of identity, when possible Canadians have chosen specific ways to underscore our differences from our American neighbours. For example, while our legal traditions both derive largely from the English common law system (or the French civil code in the case of Quebec), our approach to law-making has differed.
Recognizing that American society was becoming litigious due, in part, to the substantial awards for non-pecuniary (incalculable) general damages in civil personal injury lawsuits, the Supreme Court of Canada imposed a cap on these damages. The rationale was that a plaintiff's pain and suffering, which were caused by negligence and not intentional or malicious acts, should be recognised by a monetary award, it should not be so large as to place an undue burden of soaring insurance rates on the public.
Unfortunately, while this cap does not and should not apply to intentional acts such as sexual abuse or sexual assault, judges remain largely wedded to it when assessing general damages in these cases.
In this blog post, I first explain the reasoning used by the Supreme Court to set the common law precedent which limits non-pecuniary damages awards. Then, I note some examples in case law in which a judge has identified why this cap is not a good fit for other types of cases. Finally, I conclude by urging the courts to use the latitude they have to reconsider adhering so closely to non-pecuniary damage assessment frameworks that were designed for cases involving negligence rather than intent to cause harm.
The Damages Trilogy: The Supreme Court Establishes a Limit.
The Supreme Court of Canada provided three decisions in 1978 which established precedent for general damages awards.
In Andrews v. Grand & Toy Alberta Ltd. [1978] 2 SCR, Justice Dickson contended that "there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims. It is in this area that awards in the United States have soared to dramatically high levels in recent years. Statistically, it is the area where the danger of excessive burden of expense is greatest."
He suggested there were three theoretical approaches to considering such damages: the "conceptual" approach which treats each faculty with an objective value no matter the individual's use or enjoyment of it, the "personal" approach which values the injury in terms of loss of happiness for the individual, and the "functional" approach which accepts the premise of the personal approach but assesses damages in a way that provides a sense of "solace" for a loss that cannot be quantified.
Justice Dickson lauded the functional approach as an appropriate way to balance personal need while acknowledging a general sense of loss of enjoyment of life.
Noting the creep of damages awards in recent years, Justice Dickson took the opportunity of the exceptional nature of the case at hand to provide guidance by setting an upper limit for general damages. That limit was set at $100,000 in the Andrews case as "it is difficult to conceive of a person of his age losing more than Andrews has lost."
This amount was considered to be fair and reasonable for a loss that could not otherwise be calculated in monetary terms. It would also prevent courts across the country from awarding markedly uneven sums for cases involving similar injuries. In two other cases considered around this time, Arnold v. Teno, [1978] 2 S.C.R. 287 and Thornton v. School Dist. No. 57, [1978] 2 S.C.R. 267, the Supreme Court reaffirmed the upper limit for general damages should be $100,000 barring "exceptional circumstances."
What Have Courts Said About Assessing General Damages in Cases Involving Sexual Violence?
While the concept of a specified range of damages for cases involving sexual violence has been upheld by numerous courts, some judges have cautioned that this range, or indeed the "cap" on general damages, need not and should not apply in all of these types of cases.
For example, in C.O. v. Williamson, 2020 ONSC 3874, Justice Salmers wrote: "From my review of the cases and taking into account increasing awareness of the damage caused by childhood sexual abuse, I am satisfied that for cases involving repeated sexual assaults on a child by a person in a position of trust, the appropriate range for general and aggravated damages is from $150,000 to $450,000. As always, there are less serious and more serious cases that would fall outside of that range."
In D.S. v. Quesnelle, 2019 ONSC 3230, Justice D.M. Smith explains how Courts of Appeal in British Columbia and Ontario have considered and recognised important reasoning on this point of contention from S.Y. v. F.G.C., 1996 CanLII 6597 (BC CA).
In that case, the BC Court of Appeal underscored how certain torts such as defamation or torts involving intentional criminal behaviour differ from the public policy grounds considered when assigning a cap for personal injury or medical malpractice cases - namely that awards above the cap on general damages in those cases would not unduly burden Canadians by driving up the cost of insurance.
In S.Y. v. F.G.C., the BC Court of Appeal noted: "There is no evidence before us that this type of case has any impact on the public purse, or that there is any crisis arising from the size and disparity of assessments. A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums. Insofar as damage awards may be so high as to be wholly erroneous, or wholly disproportionate, an appellate court may intervene to correct disparity, and to foster consistency."
The justices added: "In contrast, sexual abuse claims do not usually result in awards guaranteeing lifetime economic security. In the catastrophic personal injury cases, awards under other heads of damages are so high that there may be a lesser need for general damages to provide solace and to substitute for lost amenities. In some cases, sexual abuse victims may require and deserve more than the 'cap' allows, due to the unpredictable impact of the tort on their lives. Judges, juries and appellate courts are in a position to decide what is fair and reasonable to both parties according to the circumstances of the case."
Beyond reasoning that aggrieved persons in cases where the harm committed was intentional may require an alternative structure for damages awards, and noting that policy grounds for protecting the public from burdensome insurance obligations necessitated a cap on injuries caused by negligence, courts have also expressed an additional reason to consider when assessing general damages for certain cases.
In Nova Scotia (Attorney General) v . B.M.G., 2007 NSCA 120, the Nova Scotia Court of Appeal noted "an important function of the non-pecuniary damage award in a case of sexual battery is to demonstrate, both to the victim and to the wider community, the vindication of [...] fundamental, although intangible, rights which have been violated by the wrongdoer."
It's important to ask: What message is our justice system sending to both survivors and society at large if judges do not routinely look to these precedents and reasoning when assessing general damages?
The Invisible Fence.
Although the Supreme Court noted the cap on general damages need not apply in "exceptional circumstances," and appellate courts and Courts of Appeal have considered cases where the cap was deemed not applicable, on the whole, judges remain weary about assessing non-pecuniary general damages beyond the cap in sexual abuse and sexual assault cases.
The cap on general damages essentially operates like an invisible fence - whether the power source is turned on or not, knowing that it "could" apply gives people pause for thought before they decide whether to cross the barrier. Appellate court judges awarding amounts above the cap, even if they believe them to be justified, wonder if a higher court will not knock them down on appeal.
How we conceived of sexual abuse and sexual assault has changed markedly in the years since the general damages cap was first applied by the Supreme Court in 1978. Our understanding of the life-long effect of trauma on the body and brain is miles away from what it was decades ago. Even as late as the early 1980s' the general perception was that children were so resilient that being sexually abused would have little impact on their development into adulthood.
In a similar sense, the cap on general damages is adjusted for inflation each year. The $100,000 cap in 1978 stands at about $400,000 in 2024.
As such, I believe that it is incumbent on all in the legal process to appreciate that if it is reasonable to adjust for inflation it is also reasonable to adjust for our increased understanding of the damage sexual violence causes.
Survivors of sexual violence - particularly in egregious cases - deserve to have their non-pecuniary losses recognized in a manner that honours their loss.
They deserve a signal from the courts that compensation for these losses can be just as life-altering as traumatic physical injuries and, as such, they should be compensated fulsomely even if the totality of their loss is much more difficult to quantify. While it is easy to understand how life altering the pain is of a quadriplegic, it is much harder to understand the life altering pain of a survivor of sexual abuse is, when they may appear, on the surface, relatively 'normal'.
Finally, survivors and society at large deserve to see awards above the cap as an acknowledgement that, individually and collectively, we find these acts repulsive, reproachable, and an affront to our human rights. Vast underreporting of sexual violence and the limits of the criminal justice system often leave civil lawsuits as a bulwark to a sense of inaction.
Perpetrators who, for a variety of reasons, do not stand trial for their crimes should not believe they can escape the law in its entirety. And judges can send a powerful message to abusers that there is a (substantial) cost to intentionally causing harm to another person.
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